KHAIRULLAH vs SULTAN MUHAMMAD And Another

1. MUKHTAR AHMED JUNEJO, J.---Petitioner Khairullah has sought leave to appeal against dismissal of his Civil Revision No.332 of 1995 ordered by a learned Single Judge of Peshawar High Court on 26-9-1995.

2. Petitioner's suit for pre-emption filed by him on 15-9-1985 was dismissed by the trial Court on 14-6- 1995, and such dismissal was upheld on 20-7-1995 by the learned Additional District Judge on the ground that the petitioner had failed to make Talb-e-Muwathibat and Talb-e-Ishhad. Said view was upheld by the High Court under the impugned judgment. Hence this petition.

3. Syed Safdar Hussain, learned counsel for the petitioner argued that the facts of the instant case were similar to facts of the case of Abdullah v. Haider Khan and others PLD '1'996 Supreme Court 599, where leave to appeal was granted. Learned counsel also argued that the N.-W.F.P. Pre- emption Act, 1987, was not extended to Provincial Administered Tribal Areas and hence making of Talabs was not essential in the Provincially Administered Tribal Areas before exercise of the right of pre-emption.

4. It is pertinent to observe that on the day petitioner's suit was filed, the N.-W.F.P. Pre-emption Act, 1950 held the field. Said Act was repealed on 28-4-1987 by section 35 (1) of the N.-W.F.P: Pre- emption Act, 1987. According to subsections (3) of section 35 of the N.-W.F.P. Pre-emption Act, 1987, all cases and appeals in which judgments and decree were not passed or had not become final and which immediately before commencement of said Act, 1987 were pending before a Court, shall lapse and suits of the pre-emptor shall stand dismissed, except those in which right of pre- emption was claimedunder the provisions of said Act, 1987. It is important to note that the N.-W.F.P.

5. Pre-emption Act, 1987 was enacted in response to a direction given to the N.-W.F.P. Government by the Shariat Appellate Bench of this Court in the case of Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 Supreme Court 360. The exact direction given was to amend N.-W.F.P. Pre--emption Act, 1950 according to Islamic Injunctions by 31-7-1986, or also said) Act would be considered void.

6. In the case of Sardar Ali v. Additional Secretary'1 Home and T.A. Department 1996 SCM R 1480, it was observed by one of us (Muhammad Bashir Khan Jehangiri, J.) as follows:-: - " ....It is now settled once for all that the requirement of Talabs 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-emptor. 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, the requirement of Talb 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, Act No.X of 1987 has not been extended to the Provincially Administered Tribal Areas."

7. Said case pertained to a land situated in Bandai Kas, Tehsil Barawal, District Dir. In said case suit was filed for possession by way of pre-emption under the PATA Regulation, in the Court of Assistant Commissioner, Dir. The observation made in this case contains, complete answer to the submission made by learned counsel for the petitioner in this case,, that provisions contained in the N.-W.F.P. Pre-emption Act, 1987 were not extended to the Provincially Administered Tribal Areas.

8. In the case of Abdullah v. Haider Khan PLD 1996 SC 599 only leave to appeal was granted on the ground that in the said case non-extension of N.-W.F.P. Pre-emption Act, 1987 providing for making of Talabs as a sine qua non for grant of a pre-emption decree had escaped the attention of the learned Judges of the Division Bench, who decided said case in the High Court. Even otherwise, an order simply granting leave to appeal, does not lay down a rule of law to be followed, like a judgment of this Court deciding finally a matter.

9. The other case cited at the Bar Abdul Hamid v. Haji Shabbir Khan PLD 1995 Supreme Court 649 is not of any help to the petitioner. In said case the proceedings in a pre-emption suit were continued inadvertently after 28-4-1987 and subsequently there was a compromise between the parties. In the present case, there was no compromise. Hence cited case has no application to the instant case.

10. While dismissing the Civil Revision No.332 of 1995, a learned Judge in Chamber has taken the view as follows:--- "In view of the above clear provisions of law and in view of the fact that the present pre-emptor had failed to obtain a decree on or before 31-7-1986, both the Courts below have come to perfectly correct conclusion. The learned counsel for the pre-emptor has objected to the effect that no opportunity was given to the pre-emptor to prove the factum of ' Talb-e-Muwathibat' and that the case for that reason required to be remanded. The argument would have been valid had the pre- emptor alleged having made Talb-e-Muwathibat' in the plaint. There is not an iota of even allusion to the factum of Talb-e--Muwathibat' in the plaint. As it is a question of fact, it needed to be specifically alleged in the plaint and hence in the absence thereof it is useless to call for the evidence or proof."

11. No exception can be taken to the view taken by the learned Judge in Chamber. No case is made out for grant of leave to appeal and this petition stands dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.