CH. IJAZ AHMAD, J.---The brief facts out of which the present appeal arises are that respondents/defendants Nos.2 and 3 namely Shaukat Ali and Parvez Akhtar who were the original owners of land measuring 71 Kanal, 2 Marlas situated in Mauza Kot Mela Ram, Lahore Cantt, sold their land to respondent No. l for a consideration of Rs.10,00,000 vide registered sale-deed, dated 7- 5-1.988. Mutation No. 172 was also sanctioned by the competent authority qua the said sale on 15- 6-1988. The appellant/plaintiff filed a suit for possession through pre-emption against the respondents before the Civil Judge, 1st Class, Lahore on 10-5-1989. The case set up in the plaint was that the respondents/defendants kept the bargain in secret to deprive the appellant/plaintiff from his right of pre--emption, The contents of the plaint further reveal that respondents/defendants Nos.2 and 3 had already promised with the appellant/plaintiff to sell the disputed land to the appellant/plaintiff in future by way of compromise entered between them. The contents of the plaint further reveal that appellant/plaintiff came to know about this sale for the first time on 14-4- 1989 through Lal Din. Appellant/plaintiff expressed his willingness to file a suit for pre-emption and after obtaining necessary documents sent Rana Haq Nawaz with two witnesses to respondent/defendant No. l to ask her to receive the amount of Rs.10,00,000 and surrender the land in question in favour of the appellant/plaintiff. Respondent/defendant No. l refused to accept the demand of the appellant/plaintiff, therefore, appellant/ plaintiff filed suit for pre-emption on the following grounds:-- (i)common irrigation source; (ii)common passage; and (i.e)co-owner in the disputed land.
2. Respondents/defendants filed written statement and controverted the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed the following issues:-- (1)Whether the suit is barred by time ?
(2)Whether the plaintiff has got no cause of action and locus standi to file the present suit?
(3)Whether the suit is mala fide?
(4)Whether the plaintiff is estopped by his word and conduct to bring the present suit'?
(5)Whether the suit is bad for misjoinder and liable to be dismissed?
(6)Whether the plaintiff has got a preferential right of pre-emption, compared with the defendant/vendee?
(7)Whether the suit is false frivolous, and vexatious and defendant No. l is entitled to special costs under section 35-A of C.P.C., if so, to what extent''
(8)Relief.
3. The learned trial Court dismissed the suit vide judgment and decree dated 14-12-1991. Hence the present R.F.A.
4. Learned counsel for the appellant submits that trial Court has erred in law to decide Issues Nos.1, 2 and 6 against the appellant/plaintiff by misreading evidence on record. The trial Court only considered statement of P. W. 1 qua examination-in-chief whereas the trial Court did not consider the clarification made by P.W.-1 in cross---examination in respect of knowledge of the sale, therefore, the judgment of the trial Court and findings are result of misreading and non-reading of the evidence on record. He further submits that trial Court has erred in law to dismiss the suit of the appellant/plaintiff as time-barred without realizing that the appellant/plaintiff, during the interregnum period i.e. From 1-8-1986 to 28-3-1990, as there was no codified law governing the limitation of pre-emption suits, which was filed during the aforesaid period. He further urges that provisions of Punjab Pre-emption Act, 1913 were declared against the Injunctions of Islam in Said Kamal Shah's case (PLD 1986 SC 360). He further urges that the trial Court has erred in law to decide the case against the appellant/plaintiff on aforesaid issues, without adverting to the law laid down by the Shariat Court in Muhammad Ismail Qureshi and others v. Government of Punjab and others (PLD 1991 F.S.C. 80). He further urges that the appellant had filed suit of pre-emption under the common law of Islamic Shariah in view of Article 2A of the Constitution of Islamic Republic of Pakistan, 1973. He further submits that trial Court has erred in law to decide the case against the appellant on the aforesaid issues without adverting to section 35(2) of Punjab Pre-- emption Act, 1991.
5. Learned counsel for the respondents submits that trial Court has decided the case after proper appreciation of evidence against the appellant/plaintiff on the aforesaid issues, that the learned counsel for the appellant has failed to point out any piece of evidence which was misread or non- read by the trial Court. He further urges that the trial Court has given finding against the appellant on the aforesaid issues after applying its independent mind and after proper appreciation of evidence on the record. He further submits that appellant filed suit in violation of section 6(2) of Punjab Pre-emption Act, 1991 as the contents of the plaint do not mention a single word qua Zaroorat or to avoid Zarar, which was condition precedent for filing a suit for pre-emption in accordance with the Injunctions of Islam. He further urges that appellant failed to establish Talbs in accordance with the Injunctions of Islam i.e. Talb-i-Muwathibat, Talb-i-Ishhad and Talb-i-- Khusuinat. He summed up his arguments that the trial Court decided the case in terms of the law laid down by the superior Courts. In support of his contention he relied upon Muhammad Ishaque and 2 others v. District Judge, Sargodha and 3 others (PLD 1993 Lahore 456); Ch. -Abdul Majeed v.
Ch. Inayat Ali and 4 others (PLD 2001 Lahore 194), Mst. Ulfat Butt v. Muhammad Rafique etc. (2000 YLR 4753). The learned counsel for the appellant in rebuttal submits that trial Court has erred in law to decide the case on Issues Nos.1, 2 and 6 against the appellant without adverting to the evidence on the record and the right of the appellant is superior on the basis of Exh.P-4 Joint Khata, Exh.P-6 and Exh.P-7.
6. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record ourselves.
7. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties:--- Original owners respondents/ defendants Nos.2 and 3 sold the land in question to respondent No.1 vide registered sale deed, dated 7-5-1988. The appellant filed the suit for pre--emption on 10-5- 1989. The question for determination is as to whether the appellant had to file suit for pre--emption within 4 months or within one year.
8. It is admitted fact that provisions of Punjab Pre-emption Act, 1913 were declared un-Islamic by the Honourable Supreme Court of Pakistan in Said Kamal Shah'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 appellant. Punjab Pre-Emption Act, 1991 was enacted which contains section 35, which is reproduced hereunder for ready reference:-- S.35. Saving.---(1) Notwithstanding anything in any other law for the time being in force, all the decrees, judgments or orders dismissing 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 person, 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 'Talb-i-Islhad' in the presence of two truthful witnesses.
9. The aforesaid section was also declared un-Islamic by the Shariat Appellate Bench of Hon'ble Supreme Court of Pakistan with effect from 31-12-1993 in Haji Rana Muhammad Shabbir Ahmed Khan case (PLD 1994 SC 1). It is settled principle of law that judgment of the Hon'ble Supreme Court of A Pakistan has prospective effect. In arriving to this conclusion we are fortified by the law laid down by the Hon'ble Supreme Court of Pakistan in Muhammad Yousaf v. The Chief Settlement and Rehabilitation Commissioner, Pakistan, Lahore (PLD 1968 SC 101), therefore, in terms of subsection
(2) to section 35 of Punjab Pre-emption Act, 1991. Pre-emption suit instituted by the appellant on 10-5-1989 was within time. In arriving to this 8 conclusion we are fortified by following judgments Mst.. Bashiran Bibi v. Muhammad Kashif- Khan and others (PLD 1995 Lahore 200) and Muhammad Khan v. Subah Sadiq and another (1999 YLR 923): It is also admitted fact that appellant did not mention a single word qua 'Zaroorat' or to avoid 'Zarar' as prescribed in section 6(2) of the Punjab Pre-emption Act, 1991. It is better and appropriate to reproduce section 6(2) for ready reference hereunder:--
(2) Notwithstanding anything in subsection (1), the right of pre-emption shall be exercisable only in case of ' Zaroorat' or to avoid ' Zarar'.
Mere reading of the aforesaid subsection makes it clear that the exercise of the right of pre- emption has been subjected to the condition of 'Zaroorat' or to avoid "Zarar". The Federal Shariat Court declared this subsection as repugnant to the Injunctions of Islam, vide. Its judgment, dated 13-5-1991 in the case of Muhammad Ismail Qureshi and others v. Government of Punjab and others (PLD 1991 FSC 80) and the Federal Shariat Court directed in the said judgment that the said provisions shall cease to have effect on 31-12-1991 unless amended or altered by the Provincial Legislature, so as to bring the said provisions in conformity with the Injunctions of Islam. The said judgment of the Federal Shariat Court was assailed before the Shariat Appellate Bench of Hon'ble Supreme Court of Pakistan through the case of Haji Rana Muhammad Shabbir Ahmed Khan v.
Government of Punjab Province, Lahore (PLD 1994 SC 1). The Appellate Bench of the Hon'ble Supreme Court of Pakistan dismissed the appeal on 2-9-1993, upholding the finding of the Federal Shariat Court qua the repugnancy of subsection (2) of section 6 of Punjab Pre-emption Act, 1991 to the Injunctions of Islam. The aforesaid judgment of Shariat Appellate Bench of Hon'ble Supreme Court of Pakistan declared that the said provisions shall cease to have effect on 31-12-1993 meaning thereby till 31-12-1993 the provisions of section 6(2) of the Punjab Pre-emption Act, 1991 affectively remained as part of the said statute. However, by 31-12-1993 the suit filed by the appellant had already been decided by the learned trial Court on 14-12-1991.
10. When .The aforesaid facts are put in juxtaposition then it becomes crystal clear IC that at all the stages during the trial of the present case, the provisions of subsection (2) to section 6 of the Punjab Pre-Emption Act, 1991 were very much part of the said statute and admittedly the appellant had led no evidence at all on the scores of 'Zaroorat' or to avoid 'Zarar'. The appellant did not even mention a single word with regard to 'Zaroorat' or avoidance of 'Zarar'. Mere reading of the aforesaid section shows that subsection (2) to section 6, Punjab Pre---Emption Act, 1991 prescribed philosophy of Islamic law of pre-emption and subsection (1) thereof only mentions the persons who are entitled to exercise that right, meaning thereby unless a pre-emptor fulfils the condition prescribed. Under section 6(2) of the Punjab Pre-emption Act, 1991 he could not bring a suit for pre- emption. While observing this, we are fortified by the following judgments: Sardar Khan and others v. Muhammad Siddique (2000 MLD 616), Mst. Bashiran Bibi v. Muhammad Kashif Khan and others (PLD 1995 Lahore 200), Muhammad Ali v. Muhammad Hussain (1995 MLD 5), Fazal Elahi and 26 others v. District Judge, Attock and 3 others (1993 CLC 85). There are also certain observations by the Hon'ble Supreme Court of Pakistan in case of Ghulam Hussain and others v. Mushtaq Ahmad and others (PLD 1994 SC 870).
Q.M.H./J-58/L