1. The brief facts out of which the present revision petition arises are that land in question measuring 27 Kanals, 18 Marlas owned by Javed Iqbal was sold to the respondents by him vide registered sale deed dated 17-5-1986 for consideration of Rs,1,40,000. The petitioner being aggrieved filed a suit for pre-emption on the following grounds:-
(i) Co-sharer
(ii) Owner of adjacent land (iii)Watercourse being joint The respondents filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties trial Court framed the following issues:-
(1) Whether the plaintiff has got superior right of pre-emption against the vendee-defendant? OPP (1-A) Whether the plaintiff has fulfilled three requisites of talbs? OPP
(2) Whether the plaintiff has no cause of action to bring this suit? OPD
(3) Whether the suit is within time? OPP
(4) Whether the description of suit property is 'incorrect, if so, its effect? OPD
(5) Whether the suit is for partial pre- emption? OPD
(6) Whether the plaintiff is estopped by his own act and conduct to bring this suit ? OPD
(7) Whether the suit is benami ? OPD
(8) Whether the suit has been under valued for the purposes of Court fee and jurisdiction ? OPD
(9) Whether the sale price of Rs,1,40,000 was fixed in good faith and actually paid? OPD
(10) If not, what was the market value of the suit land at the time of sale? OP. Parties
(11) Whether in case of decree of this suit the vendee defendant is entitled for sale expenses if so to what extent? OPD
(12) Relief.
2. The trial Court dismissed the suit vide judgment and decree dated 24-1-1994 on the ground of limitation that the suit was not filed within prescribed period. The petitioner being aggrieved filed appeal before the Additional District judge, Gujrat who also dismissed the same vide judgment and decree, dated 3-10-1994. Hence the present revision petition.
2. Learned counsel of the petitioner submits that sale of the land in dispute was made on 17-5-1986.
3. Pre-emption suit in respect of the same was instituted by the petitioner in the trial Court on 17-2- 1987. Initially the trial Court dismissed the suit on 21-2-1989. His decision was reversed in appeal on 31-7-1989 by Additional District Judge, Gujrat and the suit was remanded for re-trial on merits. The remand order was maintained in Civil Revision No,1620 of 1989 on 10-9-1989 by this Court.
4. Thereafter the trial Court framed the issues. The trial Court was erred in law to dismiss the suit as barred by limitation. The other issues on merits were not commented upon. The view taken by the trial Court was that pre-emption suit must have been filed within 4 months of the sale sought to be pre-empted. He further submits that both the Courts below were erred in law to dismiss the suit and appeal as time-barred. He further submits that section 35(2) of the Punjab Pre-emption Act, 1991 has retrospective effect and it covered the field from Ist August, 1986 to 28th March, 1990 and preserved in tact period of one year limitation for pre-emption suit instituted during the aforesaid interregnum period. The judgment of Shariat Appellate Bench striking down section 35 of the Punjab Pre-emption Act as repugnant to Injunctions of Islam has effect from 31-12-1993 and in terms of Article 203-H shall apply prospectively. The . pre-emption suit instituted within one year from the date of sale in terms of section 35(2) of Punjab Pre-emption Act, 1991 shall be deemed to be within limitation. In support of his contention he relied upon Muhammad Khan v.Subah Sadiq (1999 YLR 923) and Mst. Bashiran Bibi v. Muhammad Kashif Khan (PLD 1995 Lahore 200). Learned counsel of the respondents submits that both the -Courts. .below had rightly dismissed the suit and appeal of the petitioner as time barred. The petitioner had to file pre-emption suit within four months in view of section 35(2) of Punjab Pre-emption Act, 1991. He further submits that judgments of with the Courts below are in accordance with law laid down by the superior Courts. In support of his contention he relied upon the following judgments:-
(1) Government of N.-W,F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360)-
(2) Allah Bakhsh v. Muhammad Shall (1996 MLD 1706).
(3) Noor Begum v. Muhammad Boota (PLD 1995 Lahore 344).
(4) Haji Rana Muhammad Shabbir Ahmad Khan v. Province of Punjab (PLD 1994 SC 1).
(5) Muhammad Arif v. Muhammad Khan (1988 MLD (sic)).
3. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself. It is better and appropriate to reproduce the facts in chronological order to resolve the controversy between the parties:--
(1) Original owner Javed Iqbal sold the land to respondent vide registered sale-deed, dated 17-5- 1986.
(2) The petitioner filed suit for pre- emption on 17-2-1987.
5. The question for determination is as to whether the petitioner had to file suit for preemption within four months or within one year. It is admitted fact that provisions of Punjab Pre-emption Act, 1913 were declared unlslamic by the Honourable Supreme Court in Said Kamal's case (PLD 1986 SC 360) and Provincial Governments were directed to enact a consolidated law of pre-emption till 31-7- 1986. It is also admitted fact that law was not enacted by the competent bodies till filing of the suit by the petitioner on 17-2-1987. Punjab Pre-emption Act, 1991 was enacted which contained section 35 which 'is reproduced hereunder for ready reference:-- "35. Saving.---Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismising the suits of pre-emption, instituted or pending between the 1st day of August, 1986 and the 28th March, 1990 (both days inclusive) in which the right of pre- emption was claimed as is available under this Act shall be of no legal effect, and such suits on an application made by the aggrieved persons within sixty days of coming into force of this Act shall subject to subsection (2), be decided afresh according-to the provisions thereof.
(2) Notwithstanding anything in sections 13 and 30, in respect of the suits mentioned in subsection (1), the period of limitation shall be one year and it shall be sufficient if the pre-emptor establishes that he had made Talab-i-Ishhad in presence of the two truthful witnesses."
6. The foresaid section was also declared unlslamic by the Shariat Appellate Bench of Supreme Court of Pakistan w,e,f, 31-12-1993 in. Haji Rana Muhammad Shabbir Ahmad's case (PLD 1994 SC 1). It is settled principle of law that judgment of the Honourable Supreme Court ,has prospective effect. In arriving to this conclusion I am fortified by the law laid down by the Honourable Supreme Court in Muhammad Yousaf v. Chief Settlement and Rehabilitation Commissioner (PLD 1968 SC 101).
7. Therefore, in terms of subsection (2) of section 35 of Punjab Pre-emption Act, 1991 pre-emption suit instituted by the petitioner on 17-2-1987 was within time. In arriving to this conclusion I am fortified by Mst. Bashiran Bibi v. Muhammad Kashif Khan (PLD 1995 Lahore 200) and Muhammad Khan v.
8. Subah Sadiq (1999 YLR 923). The judgments relied by the learned counsel of the respondents are distinguished on facts and law as the effect of the judgment of the Honourable Supreme Court has prospective effect was not considered in the judgments cited by the learned counsel of the respondents. As mentioned above, this fact was considered by Gul Zarin Kiyani, J. (as he then was) in Mst. Bashiran Bibi's case supra.
9. In view of what has been discussed above, this revision petition is accepted and judgments of the Courts below are set aside. The case is remanded to the trial Court to decide the same afresh on remaining issues except Issue No,3. The parties are directed to appear before the trial Court on 18- 4-2002.