1986 PLP 2039 (MLD)

‑‑‑S.144 Pre-emption decree‑‑Setting aside of‑‑Restitution of suit property‑‑Possession of pre‑empted property had passed to decree‑holder in execution of pre‑emption decree which later on was set aside by Supreme Court‑‑After setting aside decree by Supreme Court and on remanding case to Trial Court‑‑Trial Court on application by judgment-debtor, under 5.144, C.P.C., held, would be under obligation to restore position which existed before passing of decree and if any subsequent developments had taken place after that, they would not be affected by that order. (c) Constitution of Pakistan (1973)‑‑‑ ‑‑‑Art.199‑‑Constitutional jurisdiction, exercise of‑‑Orders of Appellate and Revisional Courts of Revenue reversing order of Collector on erroneous view of law, were set aside by High Court in exercise of Constitutional jurisdiction‑‑Order of Collector restoring possession to vendee was sustained. Mirza Naseer Ahmad for Petitioners. Ch. Abdur Rehman for Respondents. Date of hearing: 7th May, 1986. Respondents Nos.1 to 4 were granted a decree for possession in exercise of their right of pre‑emption as tenants by the Collector on 18‑6‑1977. This order was maintained in appeal by the Additional Commissioner and in revision by the Board of Revenue. The petitioners did not succeed even in the High Court in their writ petition but the Supreme Court accepted the petitioners' appeal on 10‑11‑1984 Muhammad Ismail and others v. Member, Board of Revenue Punjab, Lahore and others 1985 S C M R

112. It was held that the suit shall be deemed to be pending before the Court of the Collector who will proceed to dispose it of in accordance with law in the light of the observations made by the Supreme Court. The suit property, in the meantime, had changed hands in execution of the decree passed by the Collector. The petitioners made an application to the Collector under section 144, C.P.C. for restitution of the suit property. The Collector accepted the petition on 2‑6‑1985 but it was set aside in appeal by the Additional Commissioner on 23‑7‑1985 on the ground that the Supreme Court had given no such direction while remanding the case to the Collector. The revision petition brought by the petitioners in the Board of Revenue was dismissed on 7‑10‑1985 on the same ground. The petitioners have now invoked the constitutional jurisdiction of this Court on the plea that the Additional Commissioner and the Board of Revenue have misapplied the law in determining the question in controversy.

2. It is correct that the Supreme Court did not refer to the question of the restitution of the property which, in the meantime, had passed to the respondents but this does not prevent the petitioners from moving an application before the trial Court. In fact under section 144, C.P.C. such an application lies before the Court of first instance and, therefore, the petition before the Collector was quite competent.

3. It has been pointed out that on remand the Collector has passed a fresh decree with regard to 120 Kanals of land out of the total area in dispute of 359 Kanals and that he has referred the case for the remaining land to the civil Court. The contention is that the Collector cannot pass any orders, as the only competent Court which could pass the orders would be the civil Court which is now seized of the matter. I find no merit in this connection. The Supreme Court while allowing the appeal of the petitioners has specifically remanded the case back to the Collector. He was, therefore, validly seized of the matter and was, under an obligation to restore the position which existed at the time of the suit. This is exactly what he has done and in doing so he has committed no illegality. The learned counsel for the respondents has expressed apprehension regarding the effect of the orders passed by the Collector on 2‑6‑1985, on the decree which he has passed subsequently. I am afraid, there is no need for any such apprehension. After setting aside of the decree by the Supreme Court it was necessary for the Collector to restore the position which existed before the passing of the decree and if any subsequent developments have taken place after that, they will not be affected by that order. In view bf the above consideration I am of the view that the orders passed by the Collector on 2‑6‑1985 did not suffer from any infirmity calling for interference by the Additional Commissioner or the Board of Revenue. The writ petition is, therefore, allowed. The order C of the Additional Commissioner and the Board of Revenue, dated 23‑7‑1985 and 7‑10‑1985 are, therefore, declared to be of no legal effect. As a result the order of the Collector, dated 2‑6‑1985 remains in the field and is to be implemented. There shall be no order as to costs. H.B.T Writ issued.