' AMIR ALAM KHAN, J.---This regular first appeal is directd against the judgment and decree dated 31-7-1991 passed by the learned Civil Judge, 1st Class, Samundri, whereby the appellants' suit seeking to pre-empt the sale in favor of the respondents was dismissed.'
2. Some necessary facts are that sale of land measuring 69 Kanals, 10 Marlas effected in favor of the respondents through Mutation No,509 dated 19-3-1989 was sought to be pre-empted by the appellants on the ground of their being Shafi Sharik, Shafi Khalit and Shafi Jar with the assertion that the appellants having come to know of the sale aforenoted performed requisite Talbs in accordance with law. It was also asserted that the sale was concluded in favor of the respondents for rupees three lacs but in order to defeat the possible pre-emptor the same was shown to be rupees eight lacs. Hence the suit seeking to pre-empt the sale.
3. The suit did not file in that regard was resisted by the respondents inter alia on the ground that the same is barred by limitation and that the appellants had performed the requisite Talbs in accordance with law nor have any superior right of pre-emption. The plea of estoppel was also added on the ground that the appellants had declined to purchase the land, therefore, they had waived their right if any. It was then submitted that in case of decretal of suit the respondents are entitled to the costs of improvements made by them.
4. The learned trial Court having framed as many as eleven issues in the case proceeded to record evidence, wherein the appellants produced three witnesses- and one of the appellants appeared himself as P.W.4. Documentary evidence produced by the appellants consisted of Takhmina Pedawar Exh.P.1, copy of Mutation No,509 Exh.P.2, copy of Mutation No,5.10 Exh.P.3, copy of Jamabandi pertaining to Khata No,37 for the year 1985-1986 Exh.P.4, copy of Roznamcha Waqayati No,283 Exh.P.5 and copy of Khasra Girdawari Exh.P.6. The respondents on the other hand produced two witnesses while one of them appeared. As D.W.3. However, no documentary evidence was produced by them. The learned trial Court having appraised the evidence proceeded to dismiss the suit of the appellants vide its judgment and decree dated 31-7-1991, which has been assailed in the present regular first appeal.
5. This case has peculiar feature of its own inasmuch as the suit was flied during the interregnum i,e,. 27-2-1990, it was not dismissed probably in view of the rule laid clOwn in Safia Begum's case that in the absence of any statutory law, classical Islamic law of pre-emption shall occupy the field.
Anyway the first Ordinance re-appeared on the statute book on 29-3-1990, which was followed by another Ordinance, which was promulgated on 29-5-1990, yet another Ordinance was promulgated on 27-8-1990, then on 19-9-1990 and 26-11-1990. This effort culminated finally into Punjab Pre-emption Act, 1991, which was published in the Official Gazette on 6-4-1991. The first two Ordinances i,e, Ordinances V and XII of 1990 did not take 'care of the suit filed during the interregnum but in the Ordinance XVIII of 1990, which was promulgated on 27-8-1990 section 36 was introduced which ordained as follows:-- "36. 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 during the period from 1st August, 1986 and 28th March, 1990, in which the right of pre-emption was claimed as is available under this Ordinance, shall be of no legal effect, and such suits, on an application made by the aggrieved persons, within sixty days of the commencement of this Ordinance, shall subject to subsection (2), be decided afresh according to the provisions thereof.
(2) Notwithstanding anything in sections 13 and 31, in respect of the suits mentioned in subsection (1), the period of limitation shall be two hundred and forty days and it shall be sufficient if the pre- emptor establishes that he had made Talb-i-Ishhad' in the presence of two truthful witnesses."
' A plane reading of the above-quoted section would reveal that the suit filed and dismissed during the interregnum could be revived by filing an application within sixty days of the commencement of the said Ordinance and the rigors of sections 13 and 31 were not made applicable thereto for subsection (2) started with non obstante clause, which lays down that notwithstanding anything contained in sections 13 and 31 i,e, in regard to performance of Talbs and the limitation the suit could be revived provided one Talb i,e, Talb-e-Ishhad has been performed by the pre-emptors. The wisdom of Legislature in enacting and introducing the said section is understandable for the law of preemption having been taken off the statute book there was lot of uncertainty in the field as to the enforcement of the right of pre-emption. The suits filed during the interregnum were continued to be dismissed, while classical Islamic law of pre-emption was always in the field. In view of this void havitg been created, section 36 was enacted and introduced in Ordinance XVIII of 1990. The question which is involved in the present case is to the effect that the suit out of which the present appeal has arisen was filed in the interregnum and was not dismissed, therefore, the question of applying directly the provisions of section 36 of the Ordinance XVII of 1990 may be of some difficulty but the fact remains that the provisions which were enacted for the benefit of a preemptor whose suit had been dismissed during the interregnum could also be applied for the benefit of pre- emptor whose suit had not been dismissed and was kept alive. This is another angle of the developing law of pre-emption. The benefits of the provisions of section 36 cannot be denied to a pre-emptor, whose suit was filed and continued during the interregnum period for such a pre- emptor cannot be left without remedy just because his suit was not dismissed during the interregnum period. In our considered opinion the suits filed during the interregnum, which were kept alive by Courts, the pre-emptor asserting his right, as would be available under the Ordinance, was required to prove only performance of Talb-e-Ishhad and the rigors of section 13 as to performance of Talb-e-Muwathibat as also the limitation, which was shortened from one year to four months, would not be applicable in his case.
6. Tested on the touchstone aforenoted, the suit filed by the appellants was hot only within limitation, but also competent, for it was asserted in the plaint, not in so many words, but loosely that the preemptors had demanded from the vendees that they should accept their right of pre- emption on payment of Rs,3,00,000 as according to them the said amount was actually paid and was in fact the market value of the same. Talb-e-Ishhad as aforenoted was made and on the refusal thereof, they filed a suit seeking to pre-empt the sale in favor of the respondents. The insistence of the learned trial Court on the performance of Talb-e-Muwathibat in the circumstances may not be relevant. The legal position as such continued in the subsequent Ordinance, although the number of section was changed from 36 to 35 till such time that the Act IX of 1991 was promulgated on 6-4-1991, wkere again the number of section was changed from 36 to
35. This suit having been decided on 31-7-1991 shall be continued to be governed by the provisions of section 35 or 36 of the Ordinance as 'also the ultimate Act, as the case may be. It was thus obvious that the learned trial Court fell in error in holding that no Talb-e-Muwathibat appears to have been performed by the appellants. Learned counsel for the appellants tried to demonstrate from the evidence that Talb-e-Muwathibat was also performed, but the learned counsel for the respondents effectively rebutted the same by arguing that the performance of Talb-e-Muwathibat having not been pleaded, any evidence led thereon is liable to be ignored under the law. There is no cavil with the proposition advanced by the learned counsel for the respondents, but the performance of Talb-e-Muwathibat was not required in the case. Coming to the factual part the learned trial Court had observed that there were material contradictions in the statements of witnesses, who were allegedly witnesses of performance of Talb-eIshhad. It was argued that the witnesses contradicted each other as to the point of time of visiting the respondents for performance of Talb-eIshhad. No doubt minor discrepancies have been found in the statements of the witnesses, but then they are not expected to make statements with computerized precision. In a village, the members of the rustic society may not be remembering with precision as to the time of visit. The overall hang of the case goes to prove that the pre-emptors went to the vendees and asked them to accept their prior right and convey the land but they refused. The reasoning of the learned trial Court that in their application for depositing Zar-e-Punjam the appellants had stated that they were not possessed of the sufficient means, therefore, it is unbelievable that they had gone to the vendees with Rs,3,00,000 may not be well-based for it is possible that at one point of time the appellants may be possessed of certain amount while at another point of time they may not be having the amount of Zar-e-Punjam. In any case, the plea of the appellants was accepted by the learned trial Court and they were allowed to furnish surety bonds instead of deposit of Zar- e-Punjam. The abovesaid order was challenged in Civil Revision No,1115 of 1990, which was also dismissed by a learned Single Judge of this Court vide his order, dated 27-2-1991. In fact nothing turns on the same.. The learned trial Court does not appear to have understood the true import of law as applicable in this case and has thus committed a vitiative infirmity in non-suiting the pre- emptors/appellants. No other point was argued.
7. In the circumstances, this appeal is accepted, the judgment and decree dated 31-7-1991 passed by the learned trial Court is set aside, resultantly the suit of the pre-emptors/plaintiffs is decreed with no order as to costs. The appellants shall deposit the total pre-emption money before 31st of December, 2001, failing which their suit shall be deemed to have been dismissed with costs.