2001 PLP 1003 (MLD)

Dr. Niaz Muhammad MNN's case 1988 SCMR 1016; Ali Ahntad's case 1972 SCMR 322; Faqir Muhammad's case PLD 1974 Note 56 at p.95; Allah Wasaya's case 1981 CLC 1202 and Ali Ahmad's case PLD 1973 Lah. 207 ref. (c) Punjab. Pre‑emption Act (I of 1913)‑‑‑ ‑‑‑‑S. 21‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition ‑‑‑Maintainability‑‑‑Pre‑emption suit‑‑‑Time‑barred execution petition‑‑‑Concurrent findings of fact by Courts below ‑‑‑Validity‑--Tribunals below having given concurrent findings of fact against the petitioner‑‑‑Constitutional petition was not maintainable Ghulam Rasool's case PLD 1971 SC 376; Khuda Bakhsh's case 1974 SCMR 279; Muhamamd Sharif's case PLD 1981 SC 246 and Abdul Rehman Bajwa's case PLD 1989 SC 522 ref. Brief facts out of which the present writ petition arises are that a petitioners purchased land measuring 20 Kanals from Khuda Bakhsh brother of respondent No.

1. Respondent No. and others being, aggrieved filed a suit for pre‑emption against the petitioners before the competent Civil Court. The Civil Court decreed the suit vide judgment and decree dated 12‑12‑1974. Respondent No. 1 approached the revenue authorities in 1986 to get the mutation entered and sanction to give effect to the decree. Mutation No. 180 was entered by the Revenue Officer but was rejected by the Tehsildar/Assistant Collector Ist Grade vide order date 19‑6‑1986. Respondent No. 1 being aggrieved preferred appeal to the Assistant Collector who upheld the order of the Tehsildar. Subsequently, respondent No. 1 filed appeal before the Additional Commissioner Revenue who set aside the orders of the Tehsildar and Assistant Collector vide order dated 16‑5‑1987. Petitioners being aggrieved filed revision petition before the Member Board of Revenue who dismissed the same vide order dated 20‑2‑1990. Hence the present writ petition.

2. Learned counsel for the petitioners submits that after the decree, an agreement was executed between the respondent No. 1 and petitioner qua the land in question. Respondent No. 1 did not file execution petition against the petitioners on the basis of the aforesaid agreement to sell. He further submits that agreement to sell was witnessed by the brothers of respondent No. 1 namely Khuda Bakhsh and Khadim Hussain. He further submits that despondent No. 1 estopped to approach the Revenue Authorities for sanction of mutation in her favour on the basis of the aforesaid decree. He further submits that Additional Commissioner Revenue set aside the concurrent finding of fact of the Tribunals below. Therefore, the order of the Additional Commissioner Revenue is not sustainable in the eyes of law. He further submits that respondent No. 1 has filed a time‑barred execution petition before the competent Court. He further submits that petitioner has also file a civil suit in which the stay has already been granted to restrain the respondents to get the mutation sanction in her favour. Learned Additional Commissioner and learned Member Board of Revenue did not consider this aspect of the case.

3. I have given my anxious consideration to the, contentions of the learned counsel for the petitioner and perused the record myself. It is admitted fact that pre‑emption decree was passed by the competent Court in favour of respondent No.1 on 12‑12‑1974. Respondent No.1 had deposited the amount in terms of the decree of the Civil Court. It is settled principle of law that the pre‑emptor becomes owner of the property from the date of payment of the pre‑emption money as per principle laid down by the superior Courts in the following judgments:‑‑ PLD 1984 SC 334 (Akram's case), 1992 SCMR 241 (Maulvi Abdul Qayyum's case) and 1988 SCMR 1016 (Dr. Niaz Muhammad MNN's case) It is also settled principle of law that even though execution of the decree has not been applied for or the money has not been withdrawn by the vendee, even then the decree remains in the field as per principle laid down by the Hon'ble Supreme Court in 1988 SCMR 1016. Dr. Niaz Muhamamd Mann's case). In the pre‑emption decree question of filing execution petition after prescribed period has no force as per principle laid down by the superior Courts in the following judgments:? 1972 SCMR 322 (All Ahmad's case FPLD 1974 Note 56 (Faqir Muhammad's case), 1981 CLC 120.2 (Allah Wasaya's case) and PLD 1973 Lahore 207 (All Ahmad's case) The impugned order also reveals that the petitioners had withdrawn the money. Therefore, petitioners are estopped to raise the plea that the respondent No. 1 has filed time‑barred execution petition on the well‑known principle of estoppel and waiver as per principle laid down in Ghulam Rasool's case PLD 1971 SC

376. The contentions raised by the learned counsel for the petitioners were not raised before the learned Member Board of Revenue as the order of the learned Member Board of Revenue did not contain a single sentence about the agreement to sell executed between the petitioner and respondent No. 1 and the respondent filed time‑barred execution petition. In the circumstances, the writ petition is not maintainable. Even otherwise the Tribunals below have given concurrent finding of fact against the petitioners. Therefore, writ petition is not maintainable as per principle laid down by the Hon'ble Supreme Court in , the following above, this writ petition has no merits and the same is dismissed. Q.M.H./M.A.K./A‑171/L??????????????????????????????????????????????????????? Petition dismissed.