ALI MUHAMMAD Versus SARDAR MUHAMMAD

Facts giving rise to this regular second appeal are that the appellant, Ali Muhammad, filed a suit against the respondent Sardar Muhammad, for possession of certain land through pre‑emption. Admittedly, the said land was purchased by the respondent for Rs.2,46,000. It was alleged by the appellant that he was owner of the estate in which the said land was situate but the respondent did not possess that qualification or a better one and, therefore, he had a superior right of pre‑emption. It was found by a Civil Judge of Toba Tek Singh that the appellant had superior right of pre‑emption for being owner of the estate but had waived the same. It was also held by him that the suit was time‑barred. Resultantly, the suit was dismissed. The appellant went in appeal before the District Judge, Toba Tek Singh. The learned District Judge reviewed findings of the learned Civil Judge on the issues of waiver and limitation. As for the finding of the learned Civil Judge that the appellant was owner of the estate but the respondent did not possess that qualification, it was not taken exception to by the learned District Judge. Despite all this he did not decree the appellant's suit because it was held by him that the appellant no longer retained a superior right of pre‑emption. His reasoning was that in view of the judgment of the Shariat Appellate Bench of the Supreme Court in the case reported as Government of N.‑W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah P L D 1986 Supreme Court 360 (Shariat Appellate Bench) the qualification of being owner of estate was not recognised by Islam for claiming a superior right of pre -emption. Accordingly, the appeal was accepted by the learned District Judge and the suit was dismissed. Hence this second appeal.

2. It was contended by learned counsel for the appellant that the view taken by the learned appellate Court is contrary to one expressed by a Full Bench of this Court in Abdul Ghaffar Khan and others v. Saghir Ahmad Aslam and others P L D 1987 Lahore 358. It has been held by the learned Full Bench 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 regular second appeal was filed by the appellant before the case of Government of N.‑W.F.P through Secretary, Law Department was decided by the Shariat Appellate. Bench. His suit was, therefore, not hit by the law laid down by the Shariat Appellate Bench.

3. As stated above, it was held by the learned Civil Judge that the appellant was an owner of the estate but the respondent did not possess that qualification or a better one. Due to that finding the appellant had a superior right of pre- emption which, as explained above, was not affected by the said judgment of the Shariat Appellate Bench. In this view of the matter, the appellant continued to have a superior right of pre‑emption even at the time of disposal of the appeal. Since the learned District Judge committed an illegality by holding otherwise, the judgment and decree passed by him call for interference by this Court.

4. This regular second appeal is, accordingly, accepted, the appellate judgment and decree are set aside and the appellant's suit is decreed on payment of Rs.2,46,000. The appellant shall pay the said sum less than the one already deposited by him with the trial Court before 23rd June, 1988, failing which his suit shall stand, dismissed. The parties shall bear their own costs.

AA./A‑335/L Appeal accepted.