Vide registered sale-deed dated 5-2-1989, the respondent purchased the suit---land. On 4-7-1989 Mst. Razia Begum, petitioner filed a suit through her attorney Muhammad Khan (also her husband), for possession of the suit-land by pre-emption. It was stated in the plaint that she was a co--- sharer in the suit-land. It was further stated that on 6-2-1989 when knowledge of sale was acquired, her general attorney made Talb-e---Muathibat and thereafter in presence of the persons mentioned in para. 3 of the plaint a demand was made to the vendee to accept the price and to transfer the land to her.
2. The respondent filed a written statement on 9-10-1989 objecting that the suit is barred by time, asserting that he had purchased the land for Rs.25,000 and also spent Rs.3,000 on the registration.
Other allegations were denied. Following issues were framed by the learned trial Court:--
(1) Whether the plaintiff has superior right of pre-emption? OPP
(2) Whether the plaintiff has made Talbs according to the Injunction of Islam? OPP
(3) Whether Muhammad Khan has no authority to file the present suit? OPD
(4) Whether the suit is barred by time? OPD
(5) Whether the ostensible sale price of Rs.25,000 was bona fide fixed and actually paid? OPD
(6) If Issue No.5 is not proved, what was the market value of the suit-land at the time of its sale?
OPPs
(7) Whether the defendant is entitled to incidental charges if so, to what extent? OPD
(8) Relief.
Evidence of the parties was recorded. Vide judgment and decree, dated 31-10-1992 the suit was decreed subject to payment of Rs.25,000 as price and Rs.3,000 as incidental charges. Feeling aggrieved the respondent filed a first appeal which was heard by a learned Additional District Judge, Chakwal who maintained the findings on the said Issues Nos.1, 5 to 7 but reversed the finding on Issues Nos.2 to 4 and dismissed the suit vide judgment and decree dated 26-9-1994.
3. Learned counsel for the petitioner contends that the learned Additional District Judge as acted with material irregularity in the exercise of his jurisdiction while reversing the findings of the learned trial Court on the said Issues Nos. 2, 3 and 4. According to the learned counsel all requirements of law applicable during the interregnum had been fulfilled and that the document of power of attorney was not properly read while holding that Muhammad Khan was not authorised to tile the suit. Further contends that the learned Additional District Judge has not pointed out as to which is that prescribed period of limitation beyond which the suit was filed while holding it to be barred by time. Learned counsel for the respondent, on the other hand, argues that the power of attorney could not have been read to confer any authority upon the attorney to file proceedings in respect of property which had not vested in the donor at the time of execution of the power of attorney.
Further contends that no evidence of Talb-e---Muathibat is there and there is a material contradiction on the said point. According to the learned counsel the limitation for the suit was 4 months and since it was filed beyond the said period it was correctly held to be barred by time.
4. I have gone through the records. Now I have gone through the copy of power of attorney placed on record by the learned counsel for the petitioner from his brief and which copy learned counsel for the respondent has agreed is the one which is subject-matter of discussion of learned Additional District Judge while dealing with the said Issue No. 3. Now I find that the petitioner lady has stated that she owns property both agricultural and residential in several Revenue Estates of the Vehari and Chakwal including her Chahar Dhab, where the suit-land is located. Now all possible authority has been conferred on the attorney who is the husband of the lady including filing of suits and in connection with the said suits to perform all relevant acts. Now I find that inter alia, the lady has authorised the attorney to deposit and to withdraw the same as well. To my mind, in the context of the ownership by the lady of the said land in the said Revenue Estate and authorising the attorney to fire suits with power to make the said deposits includes the power to file a pre-emption suit relateable to the ownership of the suit-land and I am further of the opinion that even on the principle of "Strict construction" the said intention of the lady is glaring on the face of the said document executed on 30-7-1988. I have already stated above that it is on the basis of ownership of the said land mentioned in the power of attorney that the lady is claiming to be a co- owner and consequently to be possessed with a superior right of pre-emption as against the vendee which finding in her favour has been upheld and otherwise not questioned by the respondent. So far as the said contention of the learned counsel is concerned, he has relied upon on the case of Haji Mitha Khan v. Mst. Nafees Begum and 2 others (1995 CLC 896). However, the facts in which-the said judgment was delivered have nothing in common with the facts of the present case. What was held in the said case, was that the attorney would not be having the authority to deal with the land i.e. To alienate it on the basis of a power of attorney that was executed long before the donor came to acquire the said property. Now in the present case it is not the act of alienation of the donor's property but the act in pursuance to her intention to acquire property by pre---emption that the power of the said attorney is to be examined and this power clearly stands spelt out in the said document. I, therefore, reverse the findings of the learned Additional District Judge on the said Issue No.3.
5. As to said Issue No.2 pertaining to Talbs, and Issue No.4 pertaining to limitation are concerned, it is a matter of record that the sale took place on 5-2-1989 and the suit was filed on 4-7-1989. I have already referred to the pleadings of the petitioner above. I find them complete for the purposes of exercising the right of pre-emption under the Islamic Law. Now the suit was decided by the learned trial Court on 31-10-1992 and during this period not only the several Pre-emption Ordinances were promulgated but the Punjab Pre-emption Act, 1991 itself was promulgated. Now such suits which were filed or were pending during the interregnum containing the complete pleadings and also where the right claimed was recognised by the Islamic Law were saved. It is true that the said saving clauses were declared repugnant to the Injunctions of Islam in the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1) but the said judgment has to take effect from 31-12-1993 i.e. The date stated by the Shariat Appellate Bench of the Supreme Court of Pakistan under Article 203-D of the Constitution. The suit was filed and decided by the learned trial Court long before the said judgment took effect. Under the provisions existing while the suit was pending and decided, the petitioner was required only to prove Talb-e---Ishhad in the manner prescribed and that the period of limitation for the said suit was one year. Now the learned Additional District Judge has held that Talb-e-Muathibat has not been proved. To my mind, upon a proper reading Talb-e-Muathibat also stands proved barring the discrepancy between the statement of P.W. 3 that the Talb was made on 5-2-1989, whereas in the plaint the date is mentioned as 6-2-1989. However, so far as the Talb-e-Ishhad is concerned, the same stands fully proved and has not even been questioned by the learned Additional District Judge. I have not been able to find any discrepancy in the statements of the P.Ws. In the matter of Talb-e-Ishhad so as to enable me to hold them not to be truthful within the meaning of section 35(2) of the Punjab Pre--emption Act, 1991. Similarly, the limitation for such suits is one year and the learned Additional District Judge has certainly erred in a manner so as to affect his jurisdiction while holding that the suit filed about five months after the sale was barred by time.
6. The civil revision accordingly is allowed. The judgment and decree, dated 26-9-1994 of learned Additional District Judge, Chakwal is set aside and the one passed by the leaned trial Court on 31- 10-1992 is restored. The petitioner shall, if she has not already deposited the amount, make a deposit of Rs.28,000 as held by the learned trial Court, afters adjustment of any amount already deposited, in the trial Court on or before 30-11-2002 In case she fails to make the said deposit her suit shall stand dismissed with costs throughout. At the moment the parties are left to bear their own costs.