1. ' RAJA MUHAMMAD RHURSH1D KHAN, J.-This certificated appeal by the appellants calls in question the judgment of the High Court dated 25-11-1974 by which the appeal of the respondents was accepted and the Judgment and decree of the learned District Judge Mirpur was set aside.
2. ' The following facts relevant to the dispute may with advantage be narrated so as to appreciate the points involved before us for determination.
3. ' One Mania Bakhsh deceased whose heirs are now arrayed as appellants, purchased the land measuring one kanal and 10 marias through a sale deed executed by Gbulam Muhammad pro forma-respondent No, 4 on 23-7-1965. Abdul Asia proforma-respondent No, 5 filed a suit for possession by preemption of the said property claiming to have right of prior purchase of the land in dispute being the son of Ghulam Muhammad vendor on 2-4-1966. Ohulans Huuain and others (respondents 1 to 3) brought a rival pre-emption suit for possession of this very land on 19-74966 claiming to have prior right of purchase against the vendee Mauls Bakhsh deceased on the basis of hailing from the common ancestor of the vendor.
4. ' In the that pre-emption suit of Abdul Asia, Ghulam Hussain and others (rival pre-emptors) were not made a party and on 8-2-1967 Abdul Aziz and Mauls Bakhsh entered into a compromise by which Abdul Aziz got 12 marla of the suit land leaving remaining 18 marlas to Mauls Bakhsh. Abdul Aix thus got a decree for possession to the tune of 12 marks out of the suit land on 8-2-1967 from the Court of Sub-Judge Mirpur In the second suit of Ghulam Hussain and others (respondents)
5. Abdul Aziz was Impleaded u defendant on 21.12-1967 and the learned Sub-Judge passsed a decree for possession in favour of Ghulam Hussain and others rival preemptors up to the extent of 18 marias of land that had been left in the first pre-emption decree to Mauls Bakhsh. The learned Sub-Judge refused to decree the remaining 12 marlas of the land on the ground that the compromise decree not having been challenged by the appellants by way of a suit or by way of an appeal remains intact.
6. ' Mania Bakhsh went in appeal against this judgment and decree before the District Judge, Mirpur.
7. The learned District Judge allowed his appeal on the ground that the suit of the appellant amounted to a suit of partial pre-emption as they have not challenged the compromise decree.
8. Thus the suit of Ohulam Hussain and other! (respondents) was dismissed by the District Judge on 21-1-1973,.
9. ' In appeal before the High Court tiled by Ghulam Hassian and others the High Court vide order dated 25-11-1975 accospting their appeal vacated the judgment and decree passed by the learned District Judge and tile judgment and decree passed by the learned Sub-Judge.
10. ' The learned Judge in the High Court issued a certificate to file appeal before the Judicial Board (as it was so named then) on the points :-
(1) Whether a rival pre-emptor is restrained by hi consent decree obtained by the rival pre-emptor, when the rival pre-emptor was not impleaded as a party in the pre-emption nil as required under section 28 of the Pre-emption Act 1 and
(2) Whether if in such a consent decree some land is left to the vendee, is it hit by the principle of partial pre-emption?"
11. ' The learned counsel for the parties were heard. The learned coined for the appellants on being faced with an objection raised by the other party conceded that the appeal is time-barred. But for our own satisfaction, we looked into the relevant law and it shocked us to know that the period of limitation prescribed for such appeals under the provisions of Azad Jammu and Kashmir Judicial Board (Constitution and Jurisdiction) Act, 1974, (section 14 of the Act) is 90 days and not thirty days conceded by the learned counsel for the appellants from the date of the grant of the certificate by the High Court for filing such appeals. The certificate in this case was granted on 15-1-1975. The appeal thus is well within time. The Advocate on the roll of the Supreme Court are expected to look into relevant law, lest their clients may suffer for their lack of caution and vigilance.
12. ' Ghulam Hussain and others (rival pre-empton) did not choose to file an appeal. The appeal is filed by vendee Maula Bakhsh (deceased).
13. ' Abdul Asia, as stated earlier, after striking a compromise with Maul Bakhsh got a decree for 12 marks of the land leaving the remaining 18 marl A to Maula Bakhsh. The question naturally arises whether in the circum stances of the case, the suit of Abdul Ali; suffered from the defect of partial pre-emption and whether without an appeal by the rival preemptor., Ghulsm Hussain and others (respondents), we are competent to re-open the question.
14. ' After giving our considered thought to the point, we are of the view, that prima facie there seem to be grounds for believing that the suit of Abdullah Aziz suffered from the defect of partial pre- emption. We are fortified In our view in PLD 1973 SC (Pak.) 444. In that cue, Mr. Justice Waheeduddin Ahmed, J. As he then was, facing with a similar situation made the following observation :-- "It is clear that ordinarily the pre-emptor must take over the whole bargain and he must seek pre- emption of the whole of the subject matter of the rale and pay the entire price paid by the vendee as consideration.
15. ' Judging the facts of the present case on the principles laid down in the above-mentioned observation, it is quite clear that the respondents have given up the claim in order to avoid further litigation which could not be considered as of necessity. The respondents should not have given up their rights to Khasra No, 620 simply because somebody else was claiming right in it. They should have also claimed preemption on Khasra No, 620 in spite of the fact that the vendor's title was in their opinion defective."
16. ' In that case respondents had withdrawn their suit with respect to Khan No, 620 which was sold along with the other land and wore hit by the doctrine of partial pro-emption entailing the dismissal of their suit. The instant cue is very much identical with the case decided by Mr. Justice C Waheeduddin Ahmed. In the case before us as stated earlier a portion of the land was left with the vendee on the basis of a compromise.
17. ' It is to be seen whether in these circumstances we can suo moto take notice to rectify the perpeuapted injustice seemingly to have been done to a party in the suit. This Court under section 42-A of the And Jammu & Kashmir Interim Constitution Act, 1974, has power to issue such orders as may be necessary for doing complete justice in any cue or matter pending before it.
18. ' We are, therefore, of the view that this is a fit case in which we should resort to exercise the powers under section 42-A of the Interim Constitution Act to do substantial justice between the parties.
19. Notice shall issue to Abdul Aziz, respondent to show-cause as to why his suit prima facie being hit by the doctrine of partial pre-emption rid for not impleading Ghulam Hussain and other rival pre- emptors, in his suit as defendants. May not be dismissed. Notice shell issue to the parties and their counsel. The case shall be placed before the Court after its completion for fixing a date of hearing.