Instant civil revision is directed against the judgment and decree, dated 13-9-1994 passed by the learned Additional District Judge, Chakwal, whereby he reversed the judgment and decree, dated 27-2-1992 whereby the trial Court dismissed the suit.
2. Briefly stated the facts are that plot measuring 3-1/2 Marlas was owned by Muhammad Safdar etc. Mst. Akbari Begum purchased the said plot vide sale-deed, dated 25-8-1991 for a sum of Rs.11,700. The said sale was pre-empted by the plaintiff/respondent. The defendant/petitioner contested the suit raising a preliminary objection to the effect that the said transaction was not pre-emptible as the suit property was situated within the territorial limits of Municipal Committee, Talagang and had attained urban character. From the divergent pleadings of the parties, the trial Court framed the following issues:-- (1)Whether the suit is not maintainable in its present form due to suit property being urban in nature? OPD (2)Whether the plaintiff has right of pre-emption qua the vendee-defendant? OPP (3)Whether the plaintiff has made necessary Talbs prior to enforce his right of pre-emption? OPP.
(4)Whether the plaintiff has necessity of the suit property and he will suffer an irreparable loss if the same is not returned to him? OPP.
(5)If the suit is decreed in favour of the plaintiff whether the defendant is entitled to incidental charges of the impugned sale-deed? OPD.
(6)Relief.
3. The trial Court treated issue No.1 as preliminary and after hearing arguments of learned counsel for the parties, dismissed the suit vide judgment and decree, dated 27-2-1992. The said findings were assailed by way of appeal which was accepted vide judgment and decree, dated 13-91994 and the suit was remanded to the trial Court for deciding the same in accordance with law. The defendant/petitioner has felt aggrieved of the said judgment and filed the instant civil revision.
4. Along with this civil revision, Civil Revision No.594 of 1996 has also been filed which relates to property measuring 3-1/2 Marlas which was purchased by Aun Muhammad through his father Malik Ghulam Shabbir Shakir vide sale-deed, dated 25-8-1991. The plaintiff/respondent also pre- empted the said sale and his claim was resisted by the defendant/petitioner on the same grounds as asserted by the instant petitioner (Mst. Akbari Begum). The trial Court framed almost similar issues as has been reproduced above. Vide judgment, dated 27-2-1992, the suit of the plaintiff Haji Muhammad Ayoub was dismissed who felt aggrieved of the said judgment and filed an appeal which was accepted by the learned Additional District Judge vide judgment, dated 13-9-1994 and remanded the suit for decision on merits. Aun Muhammad vendee/defendant has felt aggrieved of the said judgment, dated 13-9-1994 and filed the said revision petition.
5. As common question of law and fact is involved in both these civil revision, so these are being disposed of by this single judgment.
6. Arguments have been heard and record perused.
7. Point, requires determination in this case is, if the suit for possession through pre-emption was maintainable in respect of the property which had attained urban character. According to sub- clause (a) of section 2 of Punjab Pre-emption Act, 1991, immovable property has been defined as follows:-- "' immovable property' means immovable property situated in any area other than an urban area or within cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be for the time being in force."
According to section 2(a), immovable property means immovable property situated in any area other than an urban area. In the instant case, the suit property is situated within urban area of Municipal Committee Talagang. Thus, the suit property was not pre-emptible and the trial Court was right in the dismissing the suit on that score. The appellate Court has reversed the findings of the trial Court holding the transaction to be competent as section 2(a) of the Punjab Pre-emption Act, 1991 has been declared against Injunctions of Islam and placed reliance upon Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1, whereby provisions of section 2(a) of Punjab Pre-emption Act, 1991 have been declared repugnant to the Injunctions of Islam to the extent that it includes all the urban properties and the properties situated within the cantonment limits permanently from the application of the Act. There is no doubt that provisions of section 2(a) of the said Act have been declared repugnant to the Injunctions of Islam by the judgment referred above. However, it is clear that the said judgment was announced on 2-9-1993 and the target date from which the said decision shall take effect is 31-12-1993. Thus, provisions of section 2(a) will cease to have any effect w.e.f. 31-12-1993 and not prior to that. In the instant case, transaction took place on 25-8-1991 whereas the suit was filed on 21-12-1991. Thus, provisions of section 2(a) of the said Act still held the field on the date of sale as well as on the date of filing the instant suit. This being the factual position, the trial Court was justified in dismissing the suit as the suit property was not preemptible at the time of sale as well as at the time of filing the suit. Reliance is also placed upon Qazi Muhammad Shahab-ud-Din v.
Muhammad Qasim 1996 CLC 480.
8. For the reasons given above, revision petitions are accepted and the impugned judgments and decree of the appellate Court are set aside and those of the trial Court stand restored.
Consequently, suits filed by the plaintiff/respondent stand dismissed.