SHER MUHAMMAD Versus ZAHOOR AHMAD

This regular second appeal has arisen out of a suit brought by the respondent Zahoor Ahmad and others, against the appellants, Sher Muhammad and others, for possession of certain land through pre‑emption. The suit was decreed by Civil Judge. Appellants, therefore, went in appeal before an Additional District Judge but without success. Hence this second appeal.

2. The respondents claimed right of pre‑emption on the ground that they were owners of the estate but the appellants did not possess that qualification and, therefore, they had the superior right of pre‑emption. This plea was refuted by the appellants whereupon issues Nos. 1 and 6 were framed. These issues read as follows:‑

"(1) Whether the plaintiffs have locus standi to file this suit? O.P.D.

(6) Whether plaintiffs have superior right of pre‑emption? O.P.P."

Both these issues were decided by the learned trial Court in favour of the respondents and findings thereon were not challenged by the appellants before the learned Additional District Judge. Learned counsel for the appellants attempted to assail these findings by contending that some of the appellants cultivated the disputed land as tenants at the time of its sale in their favour. Admittedly, this plea was not raised in the written statement. Even if it is assumed that some of the appellants were tenants of the disputed land they would be hit by doctrine of sinker because, admittedly the others were not so. It was not denied by learned counsel for the appellants that the respondents were owners of the estate but the appellants, other than those who were alleged to be tenants, were strangers. It is, therefore, rightly held that the respondents had superior right of pre‑emption and, as such, had locus standi to bring the suit for pre‑emption.

3. It was also. argued by learned counsel for the appellants that the qualification on the basis whereof the respondents claimed right of pre‑emption was not recognised by the Shariat Appellate Bench of the Supreme Court in Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah P L D 1986 SC :ja0 and therefore, the respondents' suit could not succeed. It has been held by a Full Bench of this Court P L D 1987 Lah. 358 that the rule laid down by the Shariat Appellate Bench in the case of Government of N.‑W.F.P. through Secretary, Law Department, will apply prospectively and not retrospectively. Admittedly, the suit giving rise to this second appeal was filed by the appellants before the case of Government of N.‑W.F.P., through Secretary, Law Department, was decided by the, Shariat Appellate Bench. Their suit was, therefore, not hit by the law aid down by the Shariat Appellate Bench in the case of Government of N.‑W.F.P. through Secretary, Law Department.

4. No other point was agitated by the learned counsel.

5. Resultantly, this appeal fails. It is dismissed with costs

H.B.T./S‑201/L Appeal dismissed