SARDAR ALI and others vs ADDITIONAL SECRETARY HOME AND TA

ORDER

' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition for special leave to appeal is directed against the judgment dated 9-5-1994 passed by the Peshawar High Court, whereby the Constitutional Petition filed by the petitioners was dismissed.

2. The facts briefly are that Umar Ali Khan respondent No,5 purchased the disputed land which is situated in Bandai Kas, Tehsil Barawal, District Dir, somewhere in the year 1974. Sherin, the father of petitioner No,1 herein on 11-5-1983 filed a suit in the Court of A.C., Dir. The suit, it appears, was dismissed on 26-12-1983. This order of dismissal of the suit was not challenged in any forum and, therefore, it had attained finality. In the meantime, Sherin pre-emptor died and was survived by Sardar Ali petitioner No,1 who, as stated earlier, instead of pursuing the remedy of appeal or revision against the order whereby his father was non-suited, filed along with 4 others (petitioners) another suit on 18-7-1984 against the respondents for possession by way of pre-emption of the suit land under the PATA Regulation in the Court of Assistant Commissioner, Dir. The suit was contested by the respondents herein on various factual and legal grounds including the one that the suit having been filed after ten years of the sale transaction was barred by limitation. On 25-5-1987, respondent No,3 referred the matter for Sharai' verdict. The Qazi concerned returned the verdict which went against the petitioners, in that, the suit was recommended to be dismissed. This verdict after affirmation by the Qazi-ulQuzzat' was accepted by the PATA forum and, in consequence, the suit of the petitioners was in fact dismissed on 14-2-1986. 'The appeal filed there against by the petitioners also met with the *same fate which too was dismissed by the appellate forum on 9-1- 1988 on the ground that the suit was hopelessly barred by time. The petitioners challenged the above judgment by filing a revision petition before the Additional Secretary to Government of N.- W.F.P. In the Home and TA Department who by his order dated 21-1-1992 accepted it and while setting aside the aforesaid order remanded the case to the Additional Commissioner for giving 'Sharai' award after thoroughly studying the case file. The order of the Trial Court was again set aside by the appellate forum on 7-1-1993 and the case was remanded for decision afresh for the reason that the Shara award was a knocking of Shariah, in that, the decision of the Qazi that the pre-emptors had waived their right of pre-emption was not supported by any evidence'. The revision petition filed by the petitioners was again accepted on 5-9-1993 by the Additional Secretary to Government of N.-W.F.P., Home and TA Department and the order of the Trial Court was restored. The aforementioned order was challenged in the Peshawar High Court by invoking its Constitutional jurisdiction. This petition was dismissed by a learned Division Bench of the High Court on the ground that "petitioners had admittedly omitted to make any demands as envisaged by the Islamic Law before filing the suit and no decree had been passed in their favor before 31-7-1986."

3. In support of this petition, the learned counsel for the petitioners collided that as the N.-W.F.P.

Pre-emption Act, 1987, has not been extended to the Provincially Administered Tribal Areas the judgment of the learned Peshawar High Court was untenable merely on the ground that Tellabs had not been made by the pre-emptors/petitioners. #TBS A #TBE The contention of the learned counsel for the petitioners is untenable, in that, it is now settled once for all that the requirement of Tellabs being a sine qua non for the enforcement of the right of pre- emption recognized by the Muslim Law, its non-compliance had the effect of extinguishing the pre- emptive rights of all the pre-emptors. This statement of law makes no distinction between the cases under the statutory law of pre-emption or under the Muslim Law, pure and simple.

Admittedly, the areas under Regulation No,II of 1975 are governed by the pre-emption law under the general Muslim Law under which, as stated earlier, the requirement of Talban is one of the essentials for exercising the right of pre-emption. It would not, therefore, make any difference if the N.-W.F.P. Pre-emption (Act No,X of 1987) has not been extended to the Provincially Administered Tribal Areas.

5. The net result of what has been stated above is that this petition has no merit and is accordingly dismissed.