1. ' CH. RAHIM DAD KHAN, C. J.-This certificated appeal, against the judgment and decree of the High Court of Azad Jammu & Kashmir-dated 22-3-1975-by which the judgment and decree of the Subordinate Judge, Bhimber, dated 22-3-1966 and also that of the first appellate Court dated 4-3- 1968 was reversed, was originally instituted under the provisions of Judicial Board Act that stood transferred to this Court by operation of law.
2. On the 1st of March, 1962 one Baqar Khan executed a sale-deed for 46 kanals 16 marlas of land situate in village Jabbi, Tehsil Bhimber in favour of respondent Mohammad Lal son of Muhammad Ismail, resident of village Rothoua, Tehsil Mirpur for an ostensible consideration of Rs, 1,000. The sale was pre-empted by Shakar Khan, by a suit instituted on 18-2-1963 on the basis of his being co- sharer as well as real brother of the vendor. The suit was yet pending before the trial Court when Government, by Notification No, 1332-60/SL/64 dated 15-10-1964 issued under section 6(2) of the Jammu & Kashmir Right of Prior Purchase Act, extinguished the rights of prior purchase in respect of all sales of land including the built up property made in favour of displaced persons affected by the construction of Mangla Dam certified to be so affected by the Commissioner, Mangla Dam. The vendee inter alia thereupon controverted the claim of the pre-emptor on the basis of this Notification as well.
3. The plea thus taken by the vendee was not accepted by the trial Court which opined that since the notification was issued after the completion of the sale, so it could not take away the right of pre-emption that had already vested in the pre-emptor. Consequently the suit was decreed in favour of the pre-emptor. An appeal, filed by the vendee before the District Judge, Mirpur, met the same fate. The High Court, on second appeal, relying on Ghulam Rabani and others v. Maqbool Khan and others (1) (a Full Bench case), reversed the findings of both the Courts below and dismissed the suit of the pre-emptor-respondent. Upon an application made to the High Court for a certificate that the case was Et to be taken to Judicial Board the learned Chief Justice of the High Court on 22-10-1975 issued a certificate as follows : "One of the questions involved in this case is not only the interpretation but also the retrospectivity of a notification."
2. ' It was submitted that the appeal is not competent as the certificate does not disclose as to how the point of retrospectivity was involved in the instant case particularly after the decision of a Full Bench of that Court in Ghulam Rabani v. Maqbool Khan and others which was, in turn, based on the authority of the Supreme Court of Pakistan in Mst. Bibi Jan v. Miss R. A. Monny and others (2) and should have set at rest the controversy, if any, because those authorities, such as Kaju Mal v. Salig Ram (3) and Mohinder Singh v Arur Singh (4) containing contrary view, were held not to have been properly decided for the reasons that need not be reproduced here. The learned Advocate for the appellant-pre emptor also failed to mention, either in the concise statement or at the time of submission of his arguments, any such point that required interpretation or involved retrospectivity.
3. This made it somewhat difficult for us to ascertain the exact nature of the controversy that influenced the judgment of the learned Judge of the High Court in granting the certificate.
4. Objection was also taken by the learned counsel for respondent to the competence of an appeal on the basis of omission on the part of the High Court to adhere to the procedure prescribed by Order XLV, Civil Procedure Code in this behalf but we find ourselves in agreement with the proposition laid down by more than one of the learned Judges who decided National Telephone Company Ltd. v. His Majesty Post Master Genera! (5) that 'when a question is said to be referred to an established Court without more, it imports that ordinary incidents of the
(1) PLD 1971 Azad J& K 68 (2) PLD 1961 SC 69
(3) 91 P R 1919 (4) I L R 3 Lah. 267
(5) 1913 A C 546 procedure of that Court are to attach and also that any general right of appeal from its decision likewise attaches'. This, in no way, should be interpreted that we approve the method of issuing non-speaking certificate without adhering to the procedure prescribed under law in this behalf.
5. ' The contention of the learned counsel for the appellant then was that the Notification which was issued after the impugned sale would not take away the right of pre-emption that had already vested in the pre-emptor at the time of the execution of the sale. In support of his contention he cited PLD 1966 SC 362 which authority has no bearing at all on the instant case. Contrary to this, the Supreme Court of Pakistan in PLD 1961 SC 69 had to consider a case which raised very much the same consideration as presently we are faced with. Under subsection (2) of section 7 of the North-West Frontier Province Pre-emption Act, 1950 which is couched in similar words in which subsection (2) of section 6 of Jammu & Kashmir Right of Prior Purchase Act is couched a notice was issued in the name of Governor of N.-W. F. P. Taking away the right of pre-emption in respect of the land within the municipal area of Abbottabad. It would be useful, for the purpose of comparison, to reproduce here subsection (2) of section 7 of N.-W. F. P. Pre-emption Act, 1950 and the Notification issued thereunder as well as section 6(2) of Azad Jammu & Kashmir Right of Prior Purchase Act and the impugned Notification which are as under :
(i) Subsection (2) of section 7 of the N.-W. F. P. Pre-emption Act, 1950, reads : ' The Provincial Government may declare by notification that in any local area or with respect to any land or property or class of land or with respect to any sale or class of sales no right of pre- emption shall exist."
(ii) Notification that was issued in the Governor's name reads : "In exercise of the powers conferred by subsection (2) of section 7 of the North-West Frontier Province Pre-emption Act, 1950, the Governor is pleased to declare that no right of pre-emption shall exist in the Municipal area of Abbottabad from the date of the enforcement of the said Act."
(iii) Subsection (2) of section 6 of Azad Jammu & Kashmir Right of Prior Purchase Act reads : "His Highness' Government may declare by notification in the Government Gazette that in any local area or with respect to any property or class of property or with respect to any sale or class of sales no right of prior purchase or only such limited right as His Highness' Government may specify shall exist."
(iv) Notification issued by the Government under subsection (2) of section 6 of the Jammu & Kashmir Right of Prior Purchase Act reads : "In exercise of the powers vested in it under section 6(2) of the Jammu & Kashmir Right of Prior Purchase Act, the Azad Government of the State of Jammu & Kashmir is pleased to declare that no right of prior purchase shall exist with respect to any sale of land, including built up property, in Azad Kashmir territory outside the Mangla Dam affected area in favour of a displaced person affected by the construction of Mangla Dam, certified to be so affected by the Commissioner, Mangla Darn Affairs."
6. ' The comparative examination would reveal that both the provisions of these sections under which respective Notifications were issued and the wording in which these Notifications have been issued are couched in somewhat similar words. This very point of retrospectivity was also raised before the Supreme Court of Pakistan in the aforementioned case, namely Mst. Bibi Jan and others v. Miss.
7. R. A. Monny and another (1). The Supreme Court (Pak.) after examining the effect of that notification and considering the points involved held that :- "Ordinarily a notification, issued under statutory powers, should be deemed to come into effect on the date when it is published and not from an anterior date. Whether it should have any retrospective or retroactive effect, would depend entirely on the terms of the notification itself and the statutory mandate behind it. The declaration that the notification would be deemed to be good with effect from a date prior to that of its publication, may, therefore, be disregarded."
8. ' In that case while not disputing the well-recognised proposition of interpretation that retrospective effect is not to be given to a statute that would destroy an existing right or obligation otherwise than 'as regards the matter of procedure, unless that effect cannot be avoided' without doing violence to the language of the enactment their Lordships laid down that : 'It is only when the words of a statute are not plain that the maxim `omnis mova constitutio futuris .Formam imponere debet - non praeteritis' would be applied, which means that, except in special cases, the new law ought to be construed so as to interfere as little as possible with vested rights.
9. Authorities for this view would be found summed up at pages 359 to 362 and pages 368 et seq of Craies on Statute Law, Fifth Edition, and pages 215 to 222 of Maxwell on Interpretation of Statutes, Tenth Edition."
10. ' Adjudging the effect of that notification on the basis of aforementioned principle and also reviewing the entire case-law for and against starting from the earliest decision given in Bishen Singh v. Ganda Singh (2) the Supreme Court (Pak.) came to the conclusion that :- "The words of the notification appear to us to be plain and to be fairly susceptible of the interpretation that with the promulgation of the notification, all rights of pre-emption would cease to exist, in the area mentioned in the notification, whether they pertained to sales that had already taken place or to those which were to be held hereafter. The only exception that could be recognised to this proposition would be in favour of cases in which decrees had already been obtained by the pre-emptors, prior to the notification. In the case of such an existing decree, it could not be said that the pre-emptor was seeking to enforce his right to pre-empt. The right had already been successfully asserted before the date of the notification. But in the absence of any such adjudication by a Court, there is no reason why full effect should not be given to the comprehensive words of the notification, so as to non-suit plaintiffs who may have filed suits for pre-emption before the date of the notification, as well as debar all pre-emptors from instituting suits to enforce their right of pre-emption in the area in question, subsequent to the date of the notification. We are,
(1) PLD 1961 SC 69 (2) 10 P R 1913 consequently, disposed to uphold the decision of the Courts below that the right of pre-emption possessed by the appellants was lost on the date that the impugned notification was issued in the present case. We, therefore, dismiss the appeal with costs."
11. ' This authority of the Supreme Court of Pakistan was followed by a Division Bench of the Azad Jammu & Kashmir High Court in Sahib Din v. Ch. Fazal Dad Khan (1). In that case a pre-emption suit was dismissed by the trial Court on the plea of waiver, taken by the vendee, which decision of trial Court was challenged in appeal before the District Judge. While the first appeal was pending a notification was issued taking away the right of pre-emption in respect of property situated within certain limits of Rawalakot area. That notification was also couched in the similar words in which the impugned notification has been issued. In that case the Division Bench of Azad J & K High Court had the occasion to consider very much the same points as the present one. Relying on PLD 1961 SC 69 it was laid down : "The right of pre-emption is effective only if this right is exercised and merges in a decree of the Court but if this right is not exercised or the right is not incorporated in the decree of the Court, the right cannot be enforced and has no effect. The plaintiff-pre-emptor may possess a superior right than the vendee but if he has waived his right before the institution of the suit, he cannot enforce his right and his claim shall not be decreed."
12. ' The impugned Notification itself came up for consideration before a Full Bench of Azad Jammu & Kashmir High Court in Ghulam Rabani and others v. Maqbool Khan and others (2). In that case too the sale had taken place before the issue of the impugned notification as is the position in the instant case. Relying on Sahib Din v Fazal Dad and PLD 1961 SC 69 it was held at page 75 that : "Notification is fatal to all pre-emption suits whether pre-existing at the time of Notification or brought after the issue of Notification in respec of sales of land or built up property in favour of displaced persons affected by construction of Mangla Dam, except where the right o prior purchase had been incorporated in a decree in favour of a pre-emptor, generally for the reasons given in that judgment, as we were in agreement on these points at the time of discussion."
13. ' In the present case we are of the opinion that the same reasoning applies. The fact that the trial Court after issue of Notification erroneously passed a decree in favour of the pre-emptor would not legally vest pre-emptor with a right over the property because the pre-emption right had already been taken away in the case ; and the decree, that was passed at a time when there existed no more a right of prior purchase in favour of pre-emptor, would neither vest such property in him nor make any difference in his position as compared with one whose suit had been dismissed after issue of Notification because as quoted with approval in the above-mentioned judgment of Supreme Court of Pakistan we find ourselves in respectful agreement with the proposition that a pre-emptor must retain his superior right till the end of the suit.
5. The right of pre-emption in the instant case possessed by the pre-emptor was lost on the day the Notification was issued under section 6(2)1
(1) PLD 1967 Azad J & K 7 (2) PLD 1971 Azad J & K 68 of the Right of Prior Purchase Act that had taken away the right of prior purchase and a decree that was passed subsequent to the loss of the right to pre-empt, was not a valid decree in the eyes of law ; because pre-emption is the right of a person of purchasing a land in preference to other person. Thus it connects a preferential right of purchase and it is necessary for pre-emptor to show that he was clothed with the superior right not only at the time of the sale, but also at the time of institution of suit as well as at the time of the decree by the trial Court was passed in his favour. In case where he is deprived of such superior right before a decree is passed in his favour and the property is not by then legally vested in him under such decree, his suit becomes infructuous. The loss of the right to pre-empt, in law deprives such person of the right to prosecute his case any more. In these circumstances, the High Court has rightly reversed the finding of the two Courts below and dismissed the suit.
14. ' The appeal is, therefore, rejected. In view of peculiar circumstances of this case, we leave the parties to bear their own costs throughout. /p>