Law:

Section:

GUL ZARIN KIANI, J.---Plaintiff is the appellant. His plaint in the pre-emption suit was rejected under Order VII, rule 11, C.P.C. on 15-4-1987 by the trial Court. Appeal filed against the order rejecting the plaint was admitted to hearing on 13-7-1987.

 By Mutation 385 sanctioned on 14-5-1980, land in suit situate in Sialkot District was purchased by Mohammad Bashir and others. Plaintiff as owner of the estate, claimed pre-emption in respect of the above sale and brought a civil suit to recover possession of the land in dispute. Vendees resisted the suit. In course of its trial, they submitted a miscellaneous petition for rejection of the plaint on the ground that the stated qualification was found repugnant to Islamic injunctions by the Shariat Appellate Bench of the Supreme Court in Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360 and consequently, it did not survive for enforcement by the Court after 31-7-1986 when the aforenoted judgment came in force. It was stated that with the above declaration of law, plaintiff was denuded of subsisting preference and was bereft of a cause of action to proceed with the suit. As against this, plaintiff applied for leave to amend the plaint to add ground of contiguity and a common passage. By a single order passed on 15 -4-1987, the trial Court declined leave for amendment in the plaint and also rejected the plaint in the pre-emption suit. It was observed that "since the qualification/ground sought to be added in the suit that is not yet available to the pre-emptor, as no legislation has so far been made in this regard, therefore, the ground cannot be allowed to be added in the suit being irrelevant and inapplicable". As for the qualification of the ownership of land in the revenue estate already relied upon in the plaint, it was held that since it was no more enforceable, pre-emption suit could not proceed.

 On behalf of the appellant, Khawaja Habibullah learned counsel strongly relied upon the case of Ahmad v. Abdul Aziz reported as PLD 1989 SC 771 and argued that though the qualification of ownership of estate to claim pre-emption by itself was repugnant to Islamic injunctions as held by the Supreme Court in case of Malik Said Kamal Shah yet ownership of the estate coupled with qualification of contiguity was a valid ground in Islamic Law of Pre-emption to claim preference. Upon these premises, it was argued that application seeking amendment to the plaint to add contiguity was erroneously dismissed by the trial Court. Ch. Mushtaq Ahmad Khan learned counsel for the respondents refuted the arguments advanced on behalf of the appellant and submitted that of the enumerated statutory qualification in section 15 of the Punjab Pre-emption Act as amended by para. 25, Clause 3(d) of the Land Reforms Regulation, 1972 preferences conferred upon tenants, presumptive heirs, owners of agricultural land in patti, revenue estate were found un-Islamic by the Shariat Appellate Bench of the Supreme Court and ceased to exist with effect from 31-7-1986 when the judgment in the case of Malik Said Kamal Shah took effect. It was further submitted that in default of legislation by the appropriate legislature, contiguity as a qualification for claiming pre-emption in respect of sale of agricultural land could not be held to form part of the surviving statute to resurrect a wholly dead provision already found repugnant to Islamic injunctions by the Supreme Court.