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Regular Second Appeal No.31 of 1985, decided on 22nd September, 1986.

‑‑Art. 203‑GG & 203‑D‑‑Punjab Pre‑emption Act (I of 1913), Ss. 15 6 16‑‑Right of pre‑emption successfully enforced and decreed by Courts‑ Subsequent decision of Supreme Court in Government of N.‑W.F.P. v. Malik Said Kamal Shah P L D 1986 S C 360, declaring such right of pre‑emption to be repugnant to injunctions of Islam‑‑Effect‑‑Decision of Supreme Court, held, would not operate retroactively so as to impair, affect, destroy or extinguish valuable rights already existing, exercised and recognized by Courts.

Article 203‑D(2) of the Constitution of Pakistan (1973) provides that if Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision the reasons for its so holding and the extent to which the law or provisions was repugnant to the Injunctions of Quran and Sunnah and the Court was obliged to specify the date on which the decision shall take effect. In sub‑Article (3) the competent Legislatures of the country have been made responsible to act in accordance with the decision of the Court and are obliged to amend the law so as to bring such law or provisions in conformity with the Injunctions of Islam. Admittedly, no amendments so far have been made in the Punjab Pre‑emption Act, 1913, by the Provincial Legislature. In such circumstances, Article 203‑D(3)(b) shall apply which provides that the law or the provision to the extent to which it was found to be repugnant to the Injunctions of Islam shall cease to have effect on the date on which the decision of the Court takes effect. On examination of Article 203‑D of the Constitution and the date from which the decision of the Court has taken effect, it is clear that law declared by Court does not affect the rights earlier successfully asserted and recognized by the Courts. Right to acquire certain properties viz. agricultural land, village immovable property and urban immovable property in preference to others is indisputably a valuable right, and is regulated by statute in Punjab. Qualifications for enforcing a superior right of pre‑emption as regards sale of agricultural land and village immovable property are enumerated in section 15 of the Punjab Pre‑emption Act, 1913, whereas those relating to exercise of pre‑emption rights in regard to urban immovable property are found in S. 16 of the Act. In the present case as heir to the vendor, and co‑owner of the joint property, pre‑emptor had a clear pre‑emption right to purchase as compared to the vendee on the date of sale. This superiority was maintained by him on their crucial and decisive dates viz. date of sale, date of suit and the date of decision of not only of Court of first instance but first appeal Court and the stage of time when decision of the Shariat Appellate Bench of Supreme Court took effect i.e. came into force. The precedent decision does not show that it shall operate retroactively on the rights already enforced and recognized by Courts. Therefore, the inconsistency referred to in Article 203‑D of the Constitution does not affect the transactions past and closed prior to the date of the decision taking effect nor the rights and liabilities that had accrued before the decision of the Shariat appellate Bench of Supreme Court. Decision of Supreme Court does not have any such effect and does not operate retroactively so as to impair, affect, destroy or extinguish the valuable rights already existing, exercised and recognised by Courts. The pre‑emptor in order to be successfully substituted for the vendee must maintain his superiority of qualifications at the date of sale sought to be pre‑empted, at the date of filing of the suit and at the date of judgment of the Court of first instance in his favour, but one should not go beyond the date of first Court decree. If at the date of the decree of the first Court, the pre‑emptor had a right to pre‑empt then it may not be open to the appellate Court to reverse the decree on the ground that after the decree of the first Court, the ground relied upon no longer existed and or was taken away.

Finding of Supreme Court in P L D 1986 S C 360 shall take effect prospectively and not retrospectively.

Pre‑emptor in such a case who was possessed of a better right to acquire property in suit on both grounds does not face the defeat on account of a rule of law laid by Supreme Court Shariat Appellate Bench in P L D 1986 S C 360.

Maulvi Sirajul Haq for Appellant.

This second appeal by Ali Hussain, vendee has arisen in the following circumstances: ‑Fazal Karim, son of Khuda Bux, was owner of property in suit measuring 32 Kanals 7 Marlas comprised in Khasras 218, 227, 358, 380, 382, 390, 393, 396, 397, 402, 403, 410, 411, 412, 416, 441, 470, 473, 416, 477, 478, 479, 480, 498 and also Khewat Nos.64, 143 to 147 (hereinafter referred to as suit property), situated as Mouza Jarahi, Tehsil and District Rawalpindi. On 20‑3‑1979, suit property was sold by him to Ali Hussain for Rs.35,000 by a registered sale‑deed. On 20‑3‑1980, Mir Zaman, instituted the suit out of which the present appeal has arisen for pre‑emption of the land in question on the ground of his relationship to the original vendor, being co‑sharer and owner of the estate. Pre‑emptor also disputed the price paid for the suit property and averred that Rs.16,000 were paid as its sale price. As to the rest, it was pleaded that it was a fake and ficticious entry made in the sale‑deed to stave off the superior claims of the plaintiff. Defendant submitted his written statement and resisted the suit. It was pleaded that plaint had been deficiently stamped; that the suit was barred by time; that the defendant was a displaced person from Islamabad and sale in his favour was immune from pre‑emption. On merits, it was averred that suit property was genuinely purchased for Rs.35,000. Right to pre‑empt was also denied. On the aforesaid pleadings; learned Judge of the trial Court, settled following issues for determination.

(1) Whether the suit is correctly valued for the purposes of court‑fee and jurisdiction O . P . P.

If issue No.l is not proved, what is the correct valuation O.P. Parties.

(3) Whether the suit is within time O.P.P.

(4) Whether the suit is not maintainable on account of preliminary objection No.3 O.P.D.

(5) Whether the plaintiff has a superior right of pre‑emption O.P.P.

(6) Whether the ostensible sale price of Rs.35,000, was fixed in good faith or actually paid O.P.D.

(7) If issue No.6 is not proved, what was the market value of the suit land at the time of sale O.P. Parties.

(8) Relief.

On examination of the evidence adduced by the parries, learned trial Judge found for the plaintiff and decreed his suit on 15‑3‑1981, conditional on payment of Rs.35,000, directing him to deposit the decretal amount within one month from the date of decree, failing which his suit shall be deemed to have been dismissed. On appeal, learned appellate Judge agreed with the conclusions of Court of first instance and dismissed the appeal on 21‑1‑1985. Against these decisions of the Courts below, vendee has preferred this second appeal.

Out of numerous issues, the only issue alive for consideration and the decision is as to the superior right of pre‑emption.

Maulvi Siraj‑ul‑Haq, learned counsel for the appellant relied on the decision of the Shariat Appellate Bench (Supreme Court), in Government of N.‑W.F.P. through Secretary Law Department v. Malik Said Kamal Shah P L D 1986 S C 360 and raised following contentions. Superiority viz. relationship to the vendor on which the suit had succeeded in the Courts below was found to be repugnant to the injunctions of Qur'an and Sunnah and was no longer available to be relied upon. Appeal being a continuation of the original proceedings, the Court is obliged to take notice of the change in law, apply it to the facts of the case and hold that as the pre‑emptor had lost the ground of superiority during the pendency of the proceedings, he was not entitled to enforce his superior claim and succeed against the vendee. It was seriously argued that the decision of the Shariat Appellate Bench operated retrospectively so as to destroy all claims of pre‑emption based on qualifications other than those preserved by the judgment. However, transactions passed and closed where the decrees had been executed and possession delivered did not fall within the ambit of rule of law laid down by the Supreme Court. Learned counsel, was, however, constrained to admit that in case it was proved on record that pre‑emptor was also co‑sharer in the suit property, then the rule of decision relied upon shall not apply and the decrees of the Courts below. were unassailable.

In the plaint, pre‑emptor had claimed superiority on grounds of relationship, being co‑owner and owner of the estate. It was not denied that pre‑emptor was related to the vendor and in case of death was his heir. Apart from the concession offered, relationship of the pre‑emptor to the vendor was otherwise sufficiently proved by evidence. It is correct that though the right of pre‑emption had been claimed on the grounds of heirship, being joint owner and the evidence was also lead in support of the two aforenoted qualifications, yet learned Judges of the Courts below proceeded to decree the suit on the basis of relationship alone. The question whether the pre‑emptor was also co‑owner in the property in suit, was not examined and made a ground for decreeing the claim of the respondent. To ascertain whether plaintiff was also co‑owner evidence has been looked into. Exh. P. 6, copy of Jamabandi for the year 1973‑74 of revenue estate Jarahi pertaining to the suit property was placed on record by the pre‑emptor. Except for Khasras 478 to 480, which were under the sole ownership of Fazal, vendor rest of the suit property was jointly held by him with others including Mir Zaman, pre‑emptor. Exh. P. 6, therefore, visibly shows that pre‑emptor was joint owner of the property in suit except three Khasras alluded to above. Therefore, on examination of the revenue papers formally proved and let in evidence, learned counsel, had to concede that the pre‑emptor was also co‑sharer except for Khasras 478 to 480. Total area sold and conveyed vide registered sale‑deed was 32 Kanals 7 Marlas, whereas only an area of 4 Kanals 18 Marlas was transferred from three Khasras 478 to 480. It was not claimed by the appellant that he was also co‑sharer. It, therefore, cannot be disputed that the pre‑emptor was entitled to succeed on this ground except for the land measuring 4 Kanals 18 Marlas to which the claim of respondent was disputed on the strength of the rule of law laid down by Shariat Appellate Bench. Dispute now really centres 4 Kanals 18 Marlas only and the question that comes up for decision is whether in view of the decision of the Supreme Court of Pakistan (Shariat Appellate Bench) right of pre‑emption successfully enforced and decreed by Courts below was also lost. It is not denied nor can it be disputed that the decision of Shariat Appellate Bench is binding on High Court and Courts subordinates thereto. However the pivotal issue is whether the decision operated retroactively so as to destroy the effects of decrees validly passed by the Courts of competent jurisdiction in accordance with law then prevailing. This issue is to be resolved in the light of Article 203‑D of the Constitution of Pakistan. It reads:‑

203‑D. Powers, jurisdiction and function of the Court.‑‑(1) The court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (P . B . U . H .) , herein after referred to as the Injunctions of Islam.

(I‑A) Where the Court takes up the examination of any law or provision of law under clause (1) and such law or provision of law appears to it to be repugnant to the Injunctions of Islam, the Court shall cause to be given to the Federal Government in the case of a law with respect to a matter in the Federal Lagislative List or the Concurrent Legislative List, or to the Provincial Government in the case, of a law with respect to a matter not enumerated in the either of those lists, a notice specifying the particular provisions that appear to it to be so repugnant, and afford to such Government adequate opportunity to have its point of view placed before the Court.

(2) If the Court decides that any law or provision of Law is repugnant to the Injunctions of Islam, it shall set out in its decision‑‑

(a) The reasons for its holding that opinion; and

(b) the extent to which such law or provision is so repugnant; and specify the day on which the decision shall take effect: (Emphasis supplied).

Provided that no such decision shall be deemed to take effect before the expiration of the period within which an appeal there from may be preferred to the Supreme Court or, where an appeal has been so preferred, before the disposal of such appeal.

(3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam‑‑

(a) the President in the case of a law with respect to a matter in the Federal Lagislative List or the Concurrent Legislative List, or the Governor in the case of law with respect to a matter not enumerated in either of those lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam; and

(b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect.

Sub‑Article 2 provides that if the Court decides that any law or provision of law is repugnant to the Injunctions of Islam, it shall set out in its decision the reasons for its so holding and the extent to which the law or provisions was repugnant to the Injunctions of Qur'an and Sunnah and the Court was obliged to specify the date on which the decision shall take effect. In sub‑Article 3, the competent legislatures of the country have been made responsible to act in accordance with the decision of the Court and are obliged to amend the law so as to bring such law or provisions in conformity with the Injunctions of Islam. Admittedly, no amendments so far have been made in the Punjab Pre‑emption Act, 1913, by the Provincial Legislature. In such circumstances, Article 203‑D(3) (b) shall apply which provides that the law or the provision to the extent to which it was found to be repugnant to the Injunctions of Islam shall cease to have effect on the date on which the decision of the Court takes effect. In the precedent case the decision is shown to have taken effect from 31‑7‑1986. On examination of Article 203‑D of the Constitution and the date from which the decision of the Court has taken effect, I am clearly of the opinion that the law declared does not affect the rights earlier successfully asserted and recognized by the Courts. Right to acquire certain properties viz. agricultural land, village immovable property and urban immovable property in preference to others in indisputably a valuable right, and is regulated by statute in Punjab. Qualifications for enforcing a superior right of pre‑emption as regards sale of agricultural land and village immovable property are enumerated in section 15 of the Punjab Pre‑emption Act, 1913, whereas those relating to exercise of pre‑emption rights in regard to urban immovable property are found in section 16 of the Act. As heir to the vendor, and co‑owner of the joint property, respondent had a clear pre‑emption right to purchase as compared to the appellant on the date of sale. This superiority was maintained by him on three crucial and decisive dates viz. date of sale, date of suit and the date of decision of not only of Court of first instance but first appeal Court and the stage of time when decision of the Shariat Appellate Bench took effect i.e. come into force. The precedent decision does not show that it shall operate retroactively on the rights already enforced and recognized by Courts. Therefore, the inconsistency referred to in Article 203‑D of the Constitution does not affect the transactions past and closed prior to the date of the decision taking effect nor the rights and liabilities that had accrued before the decision of the Shariat Appellate Bench. In my opinion, the decision does not have any such effect and does not operate retroactively so as to impair, affect, destroy on extinguish the valuable rights already existing, exercised and recognized by Courts. It is well‑settled statement of law that the pre‑emptor in order to be successfully substituted for the venue must maintain his superiority of qualifications at the date of sale sought to be pre‑empted, at the date of filing of the suit and at the date of judgment of the Court of first instance in his favour, but one should not go beyond the date of first Court decree. If at the date of the decree of the first Court, the pre‑emptor had a right to pre‑empt then it may not be open to the appellate Court to reverse the decree on the ground that after the decree of the first Court, the ground relied upon no longer existed and or was taken away. When the facts of the case are examined in the light of decision of the Shariat Appellate Bench, provision of Article 203‑D of the Constitution as also the above statement of law, I have no hesitation to observe that the decision relied upon does not have the B effects which learned counsel wants me to hold. Normal rule is that judgment shall take effect prospectively and not retrospectively. This is firmly established by well‑settled rules of interpretation. I am, therefore, of the considered opinion that the pre‑emptor who was possessed of a better right to acquire property in suit on both grounds does not face the defeat on account of a rule of law relied upon by learned counsel. For what has been said above, this appeal is found to be without merit and is dismissed summarily.

M . B . A Appeal dismissed

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