MIAN MUHAMMAD AJMAL, J.- The petitioner seeks leave to appeal against the judgment of the Peshawar digh Court, Peshawar dated 2.4.2001, whereby Civil Revision No. 445/1996 filed by him was dismissed.
2. Brief facts are that Mst. Shamsho, respondent No. 3 ransferred the suit land to Amirzada and Akhunzada, espondents Nos. 1 and 2 on the basis of a decree in Civil suit No. 292/1, dated 6.1.1969 which was incorporated in nutation No. 618, dated 12.5.1969. Faqir Khan, the >etitioner pre-empted the said transaction alleging that it was I sale transaction for consideration of Rs.2,000/- but was jiven a colour of the Court decree. He claimed his superior ight of pre-emption on the basis of being a co-sharer, owner >f the contiguous property and participator in amenities. The lefendants/respondents Nos. 1 and 2 contested the suit laiming that the transfer was not sale and was based on the lourt decree, as such, it was exempted from pre-emption. They also claimed that the market value of the property was lot less than Rs.60,000/-. On divergent pleadings of the parties, the Trial Court framed issues, recorded evidence of the parties and after hearing their counsel decreed the suit vide its judgment dated 13.2.1971. Appeal filed thereagainst was accepted by the Appellate Court vide its judgment dated 13.12.1972, the aforesaid decree was set aside and the case was remanded for decision afresh after recording more evidence of the parties.
3. After remand, the trial lingered on for about 18 years and ultimately the suit was decreed by the Trial Court on 18.6.1990 subject to payment of Rs.5,000/-. Feeling aggrieved by the said judgment, the defendants/respondents Nos. 1 and 2 filed appeal before the Appellate Court, which was accepted vide judgment dated 3.10.1996 observing that the burden to prove that the transaction in fact was sale which was given the colour of a decree, was on the plaintiff/pre- emptor who failed to discharge the same and also failed to prove his superior right of pre-emption and consequently dismissed the petitioner's suit.
4. The validity of the said judgment was assailed by the petitioner/pre-emptor through a petition under Section T15 of the Code of Civil Procedure before the Peshawar High Court, Peshawar and a learned Judge in Chambers dismissed the same vide his judgment dated 2.4.2001, impugned herein.
5. We have heard.The learned counsel for the parties and have perused the record with their assistance. According to the averments of the pliant, Mst. Shamsho respondent No. 3 transferred her land measuring 86 kanals, 4 marlas to respondents Nos. 1 and 2 under the garb of a collusive decree dated 6.1.1969 on the basis of which mutation No. 618 was sanctioned on 12.5.1969. It was asserted by the pre-emptor that the transaction in fact was a sale in favour of respondents Nos. I and 2 through a colourable exercise in order to defeat his pre-emption right, In the first round of litigation, the case was remanded by the Appellate Court in 1972 to the Trial Court which remained pending for 18 years and was decreed on18.6.1990. During the pendency of the suit before the Trial Court old Pre-emption Act i.e. NWFP Act XIV of 1950, under which the suit was filed, was repealed vide Section 35 of the NWFP Pre-emption Act, 1987 which was enforced on 28.4.1987. Section 35 of the Act X of 1987 reads as follows:- "35. Repeal.- (1) The North-West Frontier Province Pre-emption Act, 1950 (N.W.F.P. Act XIV of 1950), is hereby repealed.
(2) In the cases and appeals filed under the Law referred to in sub-section (1) in which judgments and decrees passed by the Courts have become final, further proceedings if any relating to such cases and appeals, shall, notwithstanding the repeal of such Law be governed and continued in accordance with the provisions thereof.
(3) All other cases and appeals not covered under sub-section (2) and instituted under the Law, referred to in sub-section (1) and which immediately before the commencement of this Act were pending before a Court shall lapse and suits of the Preemptors shall stand dismissed, except those in which right of pre-emption is claimed under.The provisions of this Act."
When new Act X of 1987 came into force, there was no decree in existence m favour of the petitioner and the case on remand was pending before the Trial Court, therefore, his case would fall under sub-section (3) of Section 35 of the Act ibid and would stand dismissed as the right of pre-emption had not been claimed under the provisions of the new Act. Under Section 13 of the Act, the demands Of pre-emption (Talbs) are pre-requisite for the enforcement of right of pre-emption and in absence thereof no right of pre-emption can be pressed into service as the same stand extinguished. According to the rule laid down by this Court in Government of NWFP v. Malik Said Kamal Shah (PLD 1986 SC 360), the suit in which Ta had not been made could not be decreed beyond 31.7.198< The learned Appellate Court though dismissed the suit different grounds which even otherwise had lapsed in view Section 35(3) of the NWFP Pre-emption Act, 1987 and wd liable to dismissal, the dismissal of the suit was correct n< only on the reasons given by the Appellate Court and thl learned High Court but also on the aforesaid legal ground.
6. Consequently, this petition being without any merit is dismissed and leave refused.