2010 SCMR 1417 (PLP)

CH. IJAZ AHMAD, J.

We intended to decide the captioned petitions by one consolidated judgment arising out of the same common impugned judgment.

2. Necessary facts out of which the present petitions arise are that original owner of the land, namely, Abdul Rasheed sold land to Inayat Ullah predecessor in interest of the respondent No.1 in C.Ps.Nos.1520 and 1575 for a sale consideration of Rs.50,

000. Isa Khan predecessor in interest of petitioners in C.P. 1520-L of 2007 and Muhammad Ishaque predecessor in interest of petitioners in C.P. 1575-L of 2007 filed separate suits for possession through pre-emption in the Court of Civil Judge, Daska claimed to be the superior right on the ground of non-occupancy tenants. The said suits were decreed vide judgment dated 10-5-1976 whereby predecessor-in-interest of petitioners Isa Khan and Muhammad Ishaque were granted decree in equal shares. The said cases had a checkered history. Finally after various round of litigations, the matter came before the Lahore High Court. Legal heirs of Inayatullah filed Writ Petition No.7562 of 2001 and Writ Petition No.7657 of 2001 which were accepted through common impugned judgment dated 11-9-2007. Both the contesting parties being aggrieved filed captioned petitions.

3. Learned counsel for legal heirs of Isa Khan and Muhammad Ishaque submits that learned High Court erred in law to accept the petitions without adverting to the law laid down by this Court in Muhammad Taj's case 1997 SCMR

113. He further submits that the judgment relied upon by the learned High Court are distinguished on facts and law and the learned High Court had erred in law to accept the writ petitions in view of judgment relied upon by the learned High Court mentioned in para 4 of the impugned judgment. In support of his contention, he relied upon the following cases:-- (i) Muhammad Ali's case 1989 SCMR 796. (ii) Lal Khan's case 1986 SCMR 1962. (iii) Fateh Khan's case 1983 SCMR

293. He has reiterated that the aforesaid judgments mentioned in the impugned judgment are not attracted qua the issue involved in the case in hand.

4. Legal heirs of respondent No.1 Inayat Ullah/contesting respondents and petitioners in C.Ps. Nos.1586 and 1587 have supported the impugned judgment. Their counsel is very fare. He submits that petitioners/legal heirs of Inayat Ullah and respondents in connected petitions have filed petitions as a counter blast in view of petitions filed by the legal heirs of Isa Khan and Muhammad Ishaque.

5. We have given our anxious consideration to the contentions of learned counsel for the parties and perused the record. It is better and appropriate to reproduce operative para of the impugned judgment to resolve the controversy between the parties:-- "I have gone through the copies of the records, appended with these writ petitions. I deem it appropriate to give the details of the suit-land. The total land sold was 27 kanals 10 marlas. Out of this, 5 kanals 4 marlas is comprised in Khasra No.1228 which entire Khasra number was sold. The remaining 22 kanals 6 marlas comprises 2/17 share of land measuring 189 kanals and 11 marlas comprised in Khasra No.38 as detailed in the plaint. There is no dispute regarding Khasra number i.e. 1228 which was found to be in possession of Isa Khan respondent. It is nobody's case that the land in the said entire Khata is comprised in the tenancy of the said two pre-emptors. The Commissioner has found that Isa Khan appellant had been cultivating 29 kanals and 15 marlas of land in the said entire Khata while Muhammad Ishaque respondent had been cultivating 20 kanals and 1 marla in the said entire Khata. This being so, Isa Khan respondent would be entitled to 3 kanals 10 marlas of land being 2/17 share of the said land comprising his tenancy while Ishaque respondent would be entitled to 2 kanals and 7 marlas of said land comprising his tenancy with reference to the land sold in the entire Khata. It has been consistently laid down by the honourable Supreme Court of Pakistan that in case of land sold from joint khata unless and until the pre-emptor is a tenant in the entire Khata, the land allocated to him is to be proportionate to the share in the Khata sold as would be evident from the said judgments noted above. Both the writ petitions are accordingly allowed. The impugned judgments and decrees are set aside and instead a decree is passed in favour of Isa Khan respondent No.5/his L.Rs in respect of 8 kanals 14 marlas of land subject to deposit of a sum of Rs.15,817/- in the trial Court on or before 31-10-2007 while a decree is passed in favour of Ishaque respondent No.4 for 2 kanals and 7 marlas of land subject to deposit of Rs.4,273 in the trial Court up to 31-10-2007. The amounts, if any, already deposited by the said respondents shall be liable to be adjusted. In case the amounts have not already been deposited and the said respondents failed to deposit the same on or before the said date, the suits shall stand dismissed with costs. At the moment, the parties are left to bear their own costs."

6. The judgment cited by the learned counsel for the legal heirs of Isa Khan and Muhammad Ishaque are distinguished on facts and law. It is settled proposition of law that each and every case is to be decided on its own peculiar facts and circumstances as law laid down by this Court in Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213. The case cited by Malik Noor Muhammad Awan, Advocate Supreme Court is distinguished on facts and law as evident from the operative paras of the impugned judgment which clearly indicate that matter in issue was relating to Shamlat Deh whereas the case in hand does not have any connection whatsoever with Shamlet Deh. The proposition of law has already been settled by this Court in various pronouncements by holding that the land having been sold from joint Khata, the eligibility of pre-emptors was to be determined vis-a-vis the share of the land sold. See Muhammad Ali v. Muhammad Sharif PLD 1989 SC 796.

7. The learned High Court had decided the cases after proper appreciation of evidence on record and has given findings of fact. This Court, generally, does not interfere in the findings of fact recorded by the learned High Court while exercising power under Article 185(3) of the Constitution. It is a settled law that constitutional jurisdiction is always discretionary in character. We are not inclined to exercise our discretion keeping in view the checkered history of the cases in question. The land in question was sold by the original owner Abdul Rasheed vide original sale mutation No.70 which was attested on 23-7-1974. Pre-emption suits, initially, were filed before the Civil Court which were decreed vide judgment and decree dated 10-5-1976 in favour of the predecessor-in-interest of Isa Khan and Muhammad Ishaque, in equal share. The predecessor in interest of petitioners Isa Khan and Muhammad Ishaque have filed suits on the basis of occupancy tenant, therefore, cases were remanded by learned District Judge vide its order dated 21-10-1976 by setting aside the decrees back to the Civil Judge concerned with the direction to transfer the same to A.C./Collector concerned sub division. The litigation remained pending adjudication before different forums since 1974. Substantial justice has been done, therefore, we are not inclined to interfere in the conclusions arrived at by the High Court through the impugned judgment. As mentioned above, we are not inclined to exercise our discretion in favour of either parties as law laid down by this Court in Nawabzada Raunaq Ali's case PLD 1973 SC 236.

8. In view of what has been discussed above, petitions have no merit and the same are dismissed. Leave refused. M.H./I-3/SC Petition dismissed.