JUDGMENTDR. MUNIR AHMAD MUGHAL, J.- This is a revision petition under Section 115 C.P.C, against the order of the learned Addl. District Judge, Sialkot dated 20.4.1985 confirming the judgment and decree dated19.9.1984 passed by the learned Civil Judge, Pasrur whereby the suit tor possession through pre-emption tiled by the petitioner was dismissed.
2. The background of the case is that the petitioner tiled a suit for possession through pre-emption with the averments that Muhammad Alim vendor sold the disputed land measuring 5 marlas to the respondent on 2.11.1980, through registered sale deed for a price of Rs.6500/- but in order to defeat the preferential rights of the petitioner, ostensible sale price of Rs.7500/- was mentioned in the sale deed and that the petitioner being the real brother and collator of the vendor has a superior right of preemption against the respondent. The suit was resisted and the following issues were framed from the pleadings of the parties by the learned Civil Judge:-
1. Whether the plaintiff possesses superior right of pre- emption?Opp.
2. Whether a sum of Rs.7500/- was fixed in good faith as the sale price of the suit land or was actually paid?OPD.
3. If not so, what was the market value at the time of sale? OPD Parties.
4. Whether the plaintiff is estopped to sue?OPD.
5. Whether the suit is for partial pre-emption? OPD.
6. Whether the suit is barred by time? OPD.
7. Whether the defendant has made any improvements upon the suit land, if so, to what extent and to what effect? OPD.
8. Whether the suit property is not pre-emptiable? OPD.
9. Whether Mehmooda Begum has got no power to institute the suit on behalf of the plaintiff?OPD.
10. Relief.
The parties led their respective evidence and the learned Trial Court heard the arguments and dismissed the suit, thereafter, an appeal was preferred which also made the same fate.
3. Now in revision, the petitioner has taken the stand that the piece of land, subject matter of the pre-emption suit filed by the petitioner, is agricultural land and the mere fact that it has been included in the Municipal Limits of Town of Chawinda dows not make it urban immovable property especially in view of the observations made by the learned trial Judge after inspection that it is surrounded by agricultural land.
4. On the other had, learned counsel tor the respondent taken stand whatever may be the nature of land as the plaintiff has failed in the trial forum and also remained unsuccessful in appeal before 31st July, 1986. The present revision petition is not competent in view of the dictum laid down by the Hon'ble Supreme Court of Pakistan in Said Komal Shah's case (PLD 1986 SC 360), Muhammad Shaib's case (PLD, 1988 SC 355), PLD 1990 SC 856 and PLD 1990 SC 1060.
5. Learned counsel for the revision petitioner when confronted with this situation had no answer.
6. The Hon'ble Supreme Court of Pakistan in the case of Government of N. W.F.P, through Secretary, Law Department Versus Malik Said Kamal Shah (PLD 1986 SC 360) held that the provisions of Punjab Pre-emption Act, 1913 ceased to have effect from 31.7.1986 which was subsequently elaborated in the case of Sardar Ali and others Versus Muhammad Ali and others (PLD 1988 SC 287) in which the Hon'ble Supreme court had framed question No.2 in the following terms:- "Wf ; (her the plaintiff in a pre-emption suit having failed in the trial rum and remained unsuccessful in obtaining a decree in his favour Appeal, revision or writ petition before the 31st July,1986, can be ci anted by any of the higher forum where his case was pending on that date in. It 'ing the Supreme Court?" The answer to this question was returned in the negative.
7 The above proposition was reiterated by the Hon'ble Supreme Com t in the case of Muhammad Shaib and other Versus Member (Revenue) and others (PLD 1988 SC 355) in the following words:- " in all these petitions tiled by vendees in separate preemption matters, their respective counsel made statements that no decree has so tar been passed in favour of the respondents- pre emptores in these cases at any stage before the 31st of July, 1986 when the judgment of this Court in the case of Malik Said Kamal Shah (PLD 1986 SC 360) erne into effect. That being so, as held in this Court's judgment in the case of Sardar Ali and others V. Muhammad Ali and others (C.A.No.208/80 and other matters decided on 2-5-1988, P.L.D. 1988 SC 287) no decree can be passed now after the said date in favour of the pre-emptores on any ground co-ownership contiguity etc. If it is correct that no decree has been passed in favour of.
Such respondents-pre emptores at any stage prior to the 31st of July, 1986, no decree can now be passed in their favour in view of the judgment in the case of Sardar Ali and others. This plea, however, will have to be raised before the Courts where the matters' are now pending.
With these observations, these petitions are dismissed as having been infructuous." In Suo Motu Shariat Review Petition No. 1-R of 1989 (PLD 1990 Supreme Court 865) the order of the Court was as under:- The same view, was also taken in Sultan and another Versus Habib Ahmad and others (PLD 1990 Supreme Court 897) and Muhammad Yasin and others Versus Khan Muhammad and others (PLD 1990 Supreme Court 1060).
8. In view of the above discussions, in the present case in which admittedly the suit of the Petitioner/plaintiff was dismissed by the learned Civil Judge, Pasrur on 19.0.1984 and his appeal was dismissed on 20.4.1985 and he remained unsuccessful in obtaining a decree in his favour in appeal, revision or writ petition before 31.7.1986, no decree can be granted by this Court. Even otherwise both the courts below have given concurrent findings of facts that the suit of the petitioner was not maintainable as the suit land was not pre-emptable,
8. For the above reasons, the revision petition merits dismissal