SARDAR SAID MUHAMMAD KHAN, C.J.--- This appeal has been directed against the judgment and decree of the High Court, dated 17-3-2000, whereby the appeal filed by the, plaintiff-appellant was dismissed.
2. The brief facts of the case are that pro forma respondents Nos.2 to 6 sold land measuring 1.7 Kanals, 6 Marlas and 1 Sarsahi to Muhammad Khaliq, respondent No. 1, vide registered sale-deed, dated 6-12-1994 for a consideration of rupees ten lacs. The plaintiff/appellant brought a pre-- emption suit which was partly decreed by the trial Court to the extent of land measuring 1 Kanal and 4 Sarsahts, comprising Survey Nos.351 and 352, while dismissed the same for remaining land on the ground that vendee defendant No. l had improved his status by transfer of the land in his favour from the relevant survey numbers by obtaining two gift-deeds, dated 11-2-1995 and 3-11- 1996, i.e., one before the institution while other after the institution of the suit. The appellant, herein, filed appeals first to the District Judge and then to the High Court contending that after the amendments brought in section 14 of the Right of Prior Purchase Act and introduction of section 21- A by promulgating an Ordinance, the improvement of title by the vendee would not defeat the right of the plaintiff-appellant, especially so when the same was against the Islamic Jurisprudence and in view of the provisions contained in section 9 of the Azad Jammu and Kashmir Enforcement of Shariah Act, 1989, (hereinafter shall be called the Shari' ah Act) which require that when more than one interpretation of a statutory provision is possible, one recognised by law should be preferred. A reference was also made to section 20-A of the Right-of Prior Purchase Act according to which the improvement in the status by the vendee during the pendency of the pre-emption suit would not adversely affect the right of pre--emptor. However, the appeals filed by the appellant, herein, to the District Judge and the High Court were dismissed holding that as the improvement in status in the instant case was made before the institution of the suit, section 20-A introduced by way of amendment did not help the case of the appellant, herein.
3. Ch. Muhammad Sabir, Advocate, the learned counsel for the appellant, has argued that the High Court has failed to appreciate the arguments advanced on behalf of the appellant that after the enforcement of Shari' ah Act, if two interpretations of law are possible then the one which is according to Shariah is to be preferred. He has argued that there is no quarrel with the proposition that prior to the enforcement of Shariah Act, 'there was consensus of judicial authorities on the point that right of prior purchase should exist at three stages, namely, at the time of sale, at the time of suit and at the time of decree of the trial Court. Tie has contended that the aforesaid view is against the Muslim Jurisprudence and cannot be accepted in view of section 9 of the Shariah Act.
He has argued that it is a well-settled principle of law of Muslim Jurisprudence that if a pre-emptor has the right of purchase at the time of sale, his right cannot be defeated by the vendee by improving his title whether before or after the institution of pre-emption suit. The learned counsel has referred to a case reported as Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1 in support of his aforesaid contention.
4. In reply, Mr. Abdul Majeed Mallick, Advocate, the learned counsel for the respondents, has controverted the arguments advanced on behalf of the appellant. He has argued that in the instant case, the sale-deed was executed on 6-12-1994, the suit was instituted on 2-4-1995 and the decree of the Sub-Judge was passed on 27-2-1997 and the .Amendment whereby section 20-A was introduced was made on 15-7-1998, i.e., after the judgment and decree of the trial Court. Thus, according to him, the aforesaid amendment which has not been given retrospective effect would not affect the present suit one way or the other. The learned counsel has submitted that even otherwise, according to section 20-A, any improvement made by the vendee-defendant after the institution of the suit for pre-emption shall not adversely affect the right of the pre-emptor-plaintiff in such suit but in the instant case, as has been held by the trial Court as well as the Appellate courts, the vendee improved his status before the institution of the suit. Therefore, the learned counsel has maintained that the contention of the learned counsel for the appellant that the suit filed by the plaintiff-appellant should have been decreed in toto irrespective of improvement made by the defendant-respondent is not tenable and the aforesaid authority does not help the case of the appellant. The learned counsel has contended that there is no question of two interpretations, rather there is only one possible interpretation; even according to the authority relied upon by the learned counsel for the appellant, the vendee could improve his status before the institution of the pre-emption suit but not the pre-emptor. The learned counsel has argued that in the instant case, the plaintiff-appellant has lost the right of pre-emption due to improvement of status of the vendee-respondent before the institution of the suit which is not prohibited even under section 20-A which was introduced by way of amendment. The learned counsel has referred to a case reported as Fazal Dad v. Khadim Hussain 1995 M LD 1299, wherein it has been observed that right of pre-emption was not defeated' by amendment in section 14 of the Right of Prior Purchase Act, as the same would riot operate retrospectively
5. We have given due consideration to the arguments raised at the Bat. The first question which needs resolution is as to whether section 20-A was introduced by way of amendment when the suit filed by the plaintiff appellant was only partly decreed to the extent of 1 Kanal. 4 Sarsahis and the rest oaf the suit. Was dismissed because defendant-respondent had become a co--sharer by way of getting a gift-deed executed in his favour before the institution of the suit. Obviously, the plaintiff-appellant could not say that his suit should have been decreed because in the instant case it has not been shown by the counsel for the appellant that there is any recognised principle in. Muslim Jurisprudence that an improvement in the status of the vendee before the institution of the pre-emption suit would not affect the right of the plaintiff-pre-emptor. The authority of the Supreme Court of Pakistan relied ' upon by the learned counsel for the appellant has no application to the present case because in the aforesaid authority it has been held that if the vendee improves his status after the institution of the suit, that would not defeat the right of pre-emptor; it has nowhere been said in the aforesaid authority that even if the vendee improves his title before the institution of pre-emption suit, .His suit must fail. The relevant extracts from the judgment are reproduced below for elucidation:-- "42: ....................................................................................
If the vendee had no right of pre-emption at that time while the plaintiff had it the right of the plaintiff is established which cannot be defeated by any subsequent event which takes place after the institution of the suit: The same principle has been enumerated by 'the scholarsof Islamic Jurisprudence also.
43. A careful study of the relevant details in the books of Islamic Jurisprudence makes it clear that the Muslim jurists are of the opinion that any improvement in the status of the vendee after the institution of the suit does not defeat the right of pre-emptor, no matter whether the improvement was made by an intentional act of the vendee or has taken place according to some natural event, like succession."