' MAULVI ANWARUL HAQ, J.--- Vide a registered sale-deed, dated 8-9-1992 executed in the course of execution of a decree passed by a learned Civil Judge, the respondent No,1 purchased the suit land measuring 238 Kanals, 1 Marla situate in Revenue Estate of Baroon Kasur. On 8-9-1992 the appellants filed a suit for possession of the said land by pre-emption. The superior right was claimed on the allegation that the appellants owned land adjacent to the said land and share amenities. The Talbs were also pleaded. Respondent No,1 in his written statement, inter alia, raised objection that vide a Notification, dated 31-8-1976 issued by the Governor of Punjab the land has been included, within the Municipal Limits of Kasur, which is an urban area. The precise, pleas was that since the land is located within urban area, it stands excluded from the definition of immovable property contained in section 2(a) of the Punjab Pre-emption Act, 1991, and is not subject to pre-emption. Amongst others, the learned trial Court framed the following issues on 3- 4-1993:---
(5) Whether the suit land is not pre-emptible in view of preliminary Objection No,10 in the written statement? OPD ' Evidence of the parties was recorded on the said issue alongwith other issues. The appellants concluded their entire evidence on 31-10-1993. Some evidence of the respondent No,1 was recorded on 11-12-1993. At this stage an application already filed by respondent No,1 on 16-11-1992 under Order 7, rule 11, C.P.C. Was taken up. Vide order; dated 5-7-1994 the plaint was rejected by the learned trial Court.
2. Learned counsel for the appellants contends that section 2(a) of the Punjab Pre-emption Act, 1991 inasmuch as it had the effect of excluding the right of pre-emption in respect of land located within urban area was declared to be repugnant to Injunctions of Islam by the learned Federal Shariat Court and said declaration was upheld by the Sharia Appellate Bench of the Honourable Supreme Court in the case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1. The content Ion is that in view of the said declaration, the suit could not have been dismissed on the said ground. No one has turned up for the respondents who are proceeded against ex parte.
3. We have gone through the records of the learned trial Court, with the assistance of the learned counsel. The finding that the land in fact is located within urban area of the Kasur is not being questioned. Now according to the plaint sale had taken place on 9-5-1992. The suit was filed on 8- 9-1992. The judgment in the said case of Rana Muhammad Shabbir took effect on 31-12-1993. Under the law a preemptor has to establish that he was vested with a right of pre-emption on three crucial dates i,e, date of sale, date of filing of the suit and date when the decree is passed.
4. The judgment being relied upon by the learned counsel was passed in exercise of appellate jurisdiction vesting in Shariat Appellate Bench of the Honourable Supreme Court under Article 203- F of the Constitution. By virtue of Article 203(F)((2) the provision of Article 203(D)(2)(3) are to apply in relation to the Supreme Court. Now under Article 203(D)(2) where Court decides that any law or provision of law is repugnant to Injunctions of Islam it shall, inter alia, specify the day on which the decision shall take effect. It was under the said provisions of the Constitution that the date i,e, 31-12- 1993 was specified by the Shariat Appellate Bench. The judgment, therefore, takes effect from the said date. This being so, the appellants were not vested with a right of pre-emption in respect of the suit property on the day of the sale as also the date of the institution of the suit. This being so the plaint has been rightly rejected by the learned trial Court as on the said dates the right of pre- emption has not arisen as it could have arisen any in case of sale of immovable property by virtue of section 5 of the Punjab Preemption Act, 1991 and upon reading of section 2(a) as it stood on the said dates, suit property stood excluded from the definition of immovable property.
5. The R.F.A. Is without any force and is accordingly dismissed. However, there will be no order as to costs.