' This civil revision has been preferred against the judgment, dated 17-12-1988 passed by an Additional District Judge in appeal through which he dismissed the suit for possession through pre- emption filed by the petitioner which was decreed in his favour through judgment, dated 29-10- 1987 by a learned Civil Judge at Jhelum.
2. The brief facts in the background are that the petitioners filed a composite suit for declaration and possession through preemption. It was prayed by the petitioners that the transfer of the land in favour of the respondent by the vendor was illegal and ineffective to their rights and, in the alternative they sought a decree for possession through pre-emption. The suit was dismissed vide judgment dated 7-11-1988 by the learned Civil Judge. In appeal, the appellate Court vide judgment dated 8-1-1986 allowed the appeal and remanded the case to the trial Court with observation that declaration being sought could not be granted and the suit would be treated to have been filed only for possession through preemption. Consequently, the petitioner in post-remand proceedings filed an amended plaint. The respondents contested the suit and in the light of the pleadings of the parties and the evidence produced by them the learned trial Judge on the basis of the claim of the petitioners to be the collateral of the vendor decreed the suit vide judgment, dated 29-10-1987.
However, the learned Additional District Judge in appeal while placing reliance on Said Kamal's case (PLD 1986 SC 360), and Sardar Ali's case (PLD 1988 SC 287) held that in consequence to the declaration of the Punjab Pre-emption Act, 1913 repugnant to the injunctions of Islam by the apex Court, the collateral, lost their superior right of preemption and, therefore, the decree which was passed in their favour after 31-7-1986 which was the target date fixed in the Said Kamal's case (PLD 1986 SC 360) was not legal. The suit was further dismissed by the appellate Court in appeal on additional ground for non-fulfilment of requirement of talbs.
3. The learned counsel for the petitioners while placing reliance on 1992 SCM R 1328 (Ghulam Rasool and two others v. Faiz Bukhsh) contended that since the decree was passed in the form of dismissal of the suit before the declaration of the Punjab Pre-emption Act, 1913 repugnant to the Injunctions of Islam by the apex Court, therefore, notwithstanding the setting aside of the dismissal of suit and remand of the case by the appellate Court to the trial Court the suit would be deemed to be pending and would be governed by the provisions of Punjab Pre-emption Act, 1913. The learned counsel has also placed reliance on Nazir Begum and others v. Fazal Dad and others (1999 SCMR 2310) in support of his contention.
4. The learned counsel for the respondent on The other hand while placing reliance on the above referred case of Nazir Begum and others v. Fazal Dad and others contended that if a person in a pre-emption suit having failed to obtain decree in the trial Court before 31-7-1986, challenged the dismissal of the suit before the appellate Court and after remand to the trial Court the case was pending on the target date i,e, 31-7-1986 and a decree was granted for the first time after the said date, the suit would not be governed under the Punjab Preemption Act, 1913.
5. In the present case, the petitioners failed to get a decree in the suit before 31-7-1986 and decree was passed in their favour for the first time on 29-10-1987, therefore, in the light of the observation made by the apex Court in Nazir Begum's case (supra) and Sardar Ali's case (supra) the petitioners would not be able to plead on the strength of a decree in the form of dismissal of the suit before the target date that the suit would govern under the old law. The apex Court in Sardar Ali's case held as under:--, "64. In the opening part of this judgment, we visualised the various questions vis-a-vis situations which have arisen or might arise in connection with the present controversy. In the light of the discussion and view on the points involved, the answers to questions Nos.1 to 5 are in the negative, while Questions Nos.6 and 7 are answered in the affirmative. These questions and answers would, in our view, resolve most of the controversies. However, if there is a different question or any new situation arises in any particular case the same would be resolved by the forum concerned in accordance with the principles discussed in this judgment and those underlying the questions posed and answers already rendered."
6. There is no cavil to the proposition that in the interregnum period i,e,, from 31-7-1986 to the date of promulgation of the Punjab Pre-emption Act, 1990 the right of the parties for the purposes of pre-emption would be determined under the Islamic Law of Preemption as was held by the apex Court in Rozi Khan and others v. Syed Karim Shah and others (1992 SCM R 445). In Muhammad Anwar and others v. Muhammad Afzal and others (1995 SCM R 189) in the identical situation, the apex Court held that no decree could have been passed after the target date under Punjab Pre- emption Act, 1913. The similar view was expressed by the apex Court in Muhammad Mustafa and three others v. Muhammad Akbar and ethers (1990 SCM R 532).
7. In the light of the legal position explained above, the suit of the petitioners for possession through pre-emption was rightly dismissed by the appellate Court and this revision petition having no substance is accordingly dismissed with no order as to costs,