ALLAH DITTA Versus KHURSHID BIBI

ORDER

RAJA AFRASIAB KHAN, J.‑‑‑ On first of October, 1974, the petitioner, Allah Ditta filed a pre‑emption suit against the respondent, Mst. Khurshid Bibi for obtaining possession of house No. 3930 and a plot of land measuring 141 Sq. Yards situated outside Bohar Gate, Multan City. It was stated that custom of pre‑emption prevailed in the area to entitle the plaintiff to pre‑empt the sale of the house. According to the plaint, disputed house was situated quite close to the house of the plaintiff so much so that both the properties had a common entrance. The respondent/vendee contested the suit by filing written statement. The issues which arose, out of the pleadings of the parties, were framed. The learned Judge dismissed the suit on 24th of May, 1980 and held that there was no evidence to show that custom existed in the locality so as to create justification for the petitioner to file the suit. The appeal of the petitioner was, however, accepted by the learned Additional District Judge, Multan on 3rd of July, 1982. The findings of the trial Court on issue No.4 were set aside and the case was remanded to it for decision on other issues. The respondent filed FA.O. No.33 of 1983 before the High Court which was dismissed on 3rd of March, 1984. The appeal of the respondent was also dismissed by the Supreme Court on 4th of November, 1990. After remand, the learned Civil Judge held that in view of section 34 of the Punjab Pre‑emption Act, 1991 the suit could not proceed and as such it was dismissed on 26th of October, 1991. An application under sections 34 and 35 of the Punjab Pre emption Act, 1991 was moved by the petitioner which was also disposed of by the learned Civil Judge by a separate order. An appeal was instituted by the petitioner against the judgment,, dated 26th of October, 1991 whereby the suit was dismissed, in the Court of learned District Judge. A revision against the order, dated 26th of October, 1991 was also filed. Both the appeal and revision were accepted by a consolidated judgment dated 10th of May, 1993 by the learned appellate Court and case was remanded in terms of order dated 3rd of July, 1992. Civil Revision No.349 of 1993 and Constitution Petition No.2857 of 1993 were directed against the judgments rendered in appeal and the revision respectively. A learned Judge of the Lahore High Court accepted the Constitution petition and revision petition by declaring the judgment, dated 10th of May, 1993 to be without lawful authority and of no legal effect on 5th of October, 1993. It was held that the suit of the pre‑emptor/petitioner was not decreed before 31st of July, 1986 and as such, the suit could not now be allowed to continue because the Punjab Pre‑emption Act, 1913 had ceased to exist in the light of law declared by the Federal Shariat Court in Government of N: W.F.P. v. Malik Said Kamal Shah (PLD 1986 SC 360).

2. Learned counsel submitted that only the provisions of section 15 of the Punjab Pre‑emption Act, 1913 were declared to be void and that section 16 of the Act of 1913 still holds the field. It is added that the property in dispute, being a house, would be covered by section 16 of the Act. He, therefore, contends that this point being a matter of public importance, needs further consideration. In support of plea, learned counsel relies upon Suo Motu Shariat Review Petition No.l‑R of 1989 (PLD 1990 SC 865).

3. The argument, on the face of it, is misconceived inasmuch as the Punjab Pre‑emption Act, 1913 has been declared to be ineffective by the judgment produced and relied upon by the learned counsel for the petitioner. To illustrate it further, the relevant portion is reproduced below:‑‑

It is, thus, evident from the above discussion that Punjab Pre‑emption Act, 1913 as it stood was declared to be ineffective and as such did not exist on the Statute Book. When confronted with the operative part of the judgment relied upon by the learned counsel, he was unable to show that section 16 of the Act was still alive. We, accordingly, hold and declare that section 16 was no more a valid and living provision of law to allow the petitioner to agitate his claim before any Court of law because the whole Punjab Pre‑emption Act, 1913 was declared invalid by the Federal Shariat Appellate Bench. In such a situation, section 16 like the remaining Act, was no more available to be pressed into service by the petitioner. There is, therefore, no substance in the petition which is dismissed and leave refused.

A.A./A‑1264/S Leave refused.