This judgment shall deal with and dispose of Civil Revision No.2870/D of 1996 titled Mian Muhammad Hanif and others v. Mst. Shamim Anjum and others and Civil Revision No.2871-D of 1996 titled Mian Muhammad Hanif and others v. Mst. Shamim Anjum and others being between the same parties involving identical questions of law and facts.
2. Petitioners , through suit for possession through pre-emption, sought to pre-empt transaction of sale dated 5-7-1988 made by respondents Nos.4 to 8 in favour of respondents Nos.1 to 3 through registered sale-deed dated 5-7-1988, selling land measuring 8 Kanals, 6 Marlas situated in Khasra No.1402, Khatoni No.1265, Khata No.785 in village Harbanspura, Lahore. The suit was instituted on 16- 2-1989, which was initially dismissed by the learned Civil Judge on 30-7-1990 on the ground that Punjab Pre--emption Act, 1913 had ceased to be effective as law. Upon promulgation of Ordinance XVIII of the Punjab Pre-emption Ordinance, 1990, petitioners, on 22-10-1990 filed an application for restoration of the suit under section 36 of the Ordinance. The suit was conditionally restored on 4- 11-1992 by the learned Civil Judge subject to determination later as to whether the said suit could proceed under the present law of pre-emption or not. Respondents Nos.1 to 3 (the vendees) thereafter filed an application under section 151, C.P.C., seeking dismissal of the suit on the ground that the same was not proceedable under the applicable law. The learned Civil Judge accepted the said application and dismissed the suit through judgment and decree dated 20-6-1995. Upon petitioners' appeal, the learned Additional District Judge, Lahore, through judgment and decree dated 28-7-1996 upholding the judgment and decree dated 20-6-1995 dismissing the suit, rejected appeal of the petitioners. Petitioners have thus assailed the abovesaid judgments and decrees through the present civil revisions.
3. Learned counsel for the respondents raised a preliminary objection that the suit --land fell within the municipal limits of Lahore as per Notification dated 14-8-1939 published in the Punjab Government Gazette on 1-9-1939, therefore, the suit-land was beyond the scope of definition of immovable property as given in Ordinance VIII of 1990. As such, right of pre-emption could not be claimed upon the said land under the Ordinance of XVIII of 1990 or even under the Punjab Pre- emption Act, 1991, wherefor, the suit could not have been revived or restored by the learned Civil Judge.
4. Learned counsel for the petitioners admitted that the land under sale was located within the municipal area of Lahore but objected that no such ground was raised before the learned Courts below either in the suit or in appeal. And that the abovesaid provisions have been declared ultra vires in the case of Haji Rana Shabbir Ahmad Khan v. Government of the Punjab PLD 1994 SC 1, wherefor, the petitioners had the right of pre--emption upon sale of land falling within the municipal area of Lahore.
5. I have considered the submissions of the learned counsel for the parties. It is an admitted position that by Notification dated 14-8-1939 published in Punjab Government Gazette of September 1, 1939, Mauza Harbanspura (where the suit-land is located) was included within the limits of Municipality of Lahore under subsection (3)--of section 5 of the Punjab Municipal Act, 1911, as per Schedule annexed with the said Notification. Accordingly, the suit-land fell beyond the definition of immovable property as per section 2(a) of Ordinance VIII of 1990' or section 2(a) of the Punjab Pre-emption Act, 1991, as it then was. Under section 36 of Ordinance XVIII of 1990 or under section 35 of the Act of 1991, only such category of suit was to be decided afresh in which the right of pre-emption was claimed as is (was) then available under the Ordinance or under the Act as the case may be.
6. It is also an admitted position of the parties that petitioners filed their application for redecision/revival of the suit on 20-10-1990 under section 36(a) of the Punjab Pre-emption Ordinance, 1990 (Ordinance XVIII of 1990) and the learned trial Judge conditionally revived the suit so as to see whether it can measure up to the standard of the new Ordinance and whether it can proceed in its light or not. Later upon application of the respondents, the suit was dismissed by judgment and decree dated 20-6-1995 by the learned Civil Judge on the ground that revival application was not within time and further that only rights of occupancy tenancy had been sold in the land which in fact was owned by the Central/Federal Government. On appeal, the learned Additional District Judge, through judgment and decree, dated 28-7-1996 upheld the dismissal of the suit by the learned Civil Judge for the reasons that transaction was not pre-emptible as it related to sale of rights of occupancy tenancy for the land owned by the Federal Government and even the petitioners were not co-owners therein but were themselves occupancy tenants.
Petitioners challenged the abovesaid judgments and decrees in the present civil revisions.
7. It has not been denied by the learned counsel for the respondents that the respondents had not raised the preliminary objection as raised before this Court regarding non-availability of the right of pre--emption qua the suit-land on the ground of its location within the municipal area of Lahore. I am, however, of the opinion that this objection is purely legal in view of the admission by the petitioners regarding location of the suit-land and wherefor, this objection does not require any factual inquiry. Further that as the law then was, the suit-land did not fall within the definition of immovable property as per section 2(a) (ibid) and sale of the suit-land could not have been pre- empted by the petitioners. As such, right of pre-emption through filing a suit for possession through pre-emption was not available under Ordinance XVIII of 1990 or under Act IX of 1991 to the petitioners.
8. The question of non-availability of this right at the time of the application for revival of the suit or restoration of the suit by the learned Civil Judge, was basic and essential for maintenance of such suit and for assumption of jurisdiction by the learned Civil Judge. I, therefore, hold that respondents cannot be debarred from raising such an admitted and legally established fact at the revisional stage. Also for the reason that if the sale of the suit-land was not pre-- emptible, the result of the trial upon remand by this Court after setting aside the impugned judgments and decrees, will effectively and substantially be the same as the suit of the petitioners will obviously be liable to dismissal. Now, therefore, reverting back to the preliminary objection raised by the learned counsel for the respondents, I find a lot of merit in the proposition regarding unavailability of right of pre- emption under Ordinance XVIII of 1990 as it then stood. Petitioners' application dated 20-10-1990 could only be maintained and order dated 4-11-1992 could only be passed by the learned Civil Judge, for restoration of the suit under section 36 of the said Ordinance of 1990 or under section 35 of the said Act of 1991, if petitioners' claim to right of pre--emption was available under the Ordinance and the Act.
9. The prerequisites for exercise or jurisdiction under the abovesaid section 36 or, section 35 (ibid) were that:-- (i)Suit was tiled between the period from 1-8-1986 and 28-3-1990 and (ii)Right of pre-emption, as claimed in such suit was available under Punjab Pre-emption Ordinance, 1990, or Punjab Pre-emption Act, 1991, to the plaintiffs/pre-emptors.
10. The Honourable Supreme Court of Pakistan declared the abovesaid section 2(a) repugnant to Injunctions of Islam w.e.f. 31-12-1993 in the above-referred case of Haji Rana Shabbir Ahmad Khan v.
Government of the Punjab PLD 1994 SC 1. The said judgment was obviously applicable prospectively and section 2(a) (ibid) became effective only from 31-12-1993. Reference is made to the decisions of this Court in the rasp of Mst. Nighat Kausar alias Nighat Yahyah v. Mushtaq Ahmed and 2 others 1999 YLR 407 Mst. Shamim Akhtar v. Muhammad Nawaz 1999 YLR 2556 and Qazi Muhammad Shahab-ud-Din v. Muhammad Qasim 1996 CLC 480. As such, till 31-12-1993, section 2(a) (ibid) was an effective and binding part of the Statute Book, whereunder. The suit-land, being within the municipal area, did not fall in the definition of immovable property and sale of suit-land was not pre-- emptible under section 5 (ibid). As such claim to the right of pre-emption as pleaded in the suit and in application for its revival. Was not available to the petitioners under Ordinance XVIII of 1990 or Act IX of 1991. Wherefor, neither their application for restoration of suit was maintainable nor was their suit.
11. In view of what has been observed above, the present civil revisions are dismissed with no order as to costs.
Q.M.H./M.A.K./M-1602/L