P L D 1987 Lahore 268 (PLP)

Facts giving rise to this regular second appeal are that the respondents, Noor Muhammad and others, filed a suit against the appellants, Muhammad Ramzan and others, for possession of certain land through pre‑emption. The respondents claimed superior right of pre‑emption as follows :‑.‑ of pre‑emption. Judgment and decree of the learned trial Court were assailed by the appellants by taking appeal to an Additional District Judge. Before the learned Additional District Judge too, the question of jurisdiction was raised by the appellants but without success. The learned Additional District Judge upheld the findings of the learned trial Court on other points and dismissed the appeal. Feeling aggrieved by his judgment and decree, the appellants have come up in second appeal to this Court.

3. The respondents' suit was filed on 5th July, 1975. It was pending when Land Reforms (Amendment) Ordinance, came into force, in 1976. It was contended by learned counsel for :he appellants that since the respondents based their claim on the right of tenancy also, their suit stood transferred to the Collector on the commencement of the said Ordinance and, therefore, the learned Civil Judge had no jurisdiction to decide it. He cited Muhammad Ismail and others v. Member, Board of Revenve, Punjab, Lahore and others (1) and Abdul Qayyum and another v. Zubaida Khanum and 4 others (2) to support his contention. In addition, he placed reliance on unreported judgment in the case of Noor Muhammad v. Sardar Muhammad (civil Miscellaneous No. 1345‑C of 1979), which was decided by Mr. Justice Mushtaq Hussain, the then Chief Justice of this Court.

4. On the other hand, it was submitted by learned counsel for the respondents that since the respondents pre‑empted the disputed land not only on the ground of tenancy but also on the basis of other qualifications, which could be looked into by the civil Court only, their suit did not come within the mischief of above provisions of the said Ordinance. It was also pointed out by him that the plea of tenancy was abandoned by the respondents at the stage of appeal. It was further argued by him that the appellants had submitted to the jurisdiction of the trial Court because they had not raised any objection thereto till the suit reached the stage of final arguments. Lastly, it was pleaded by him that in view of decision in Government of N.‑W. F. P. through Secretary, Law Dapartment v. Malik Said Kamal Shah (3) (Shariat Appellate Bench), right of pre‑emption could not be claimed on the ground of tenancy, and, therefore, objection of the appellants relating to jurisdiction of the learned lower Courts was of no consequence.

5. As indicated at the outset, the respondents' suit was not solely based on the ground of ‑tenancy. Besides the qualification of being tenants, they had made a mention of other qualifications on the basis whereof they could pre‑empt the disputed sale before a civil Court. In my humble opinion such like cases of composite nature should be taken to the Collector first because, in view of sub‑paragraph (3) of paragraph (25) of the Land Reforms Regulation, the qualification of tenancy supersedes all other qualifications. If the plaintiff fails before the Collector, he (Collector) should send back the suit to the civil Court for decision on the basis of A other qualifications claimed by him. If any such suit was pending before a civil Court at the time of coming into force of the said Ordinance, it automatically stood transferrred to the Collector concerned by virtue of the provisions of sub‑paragraph (5) of paragraph (25) of the said Regulation and it was for the Collector to deal with the suit in the aforesaid manner. This view of mine is supported by observations recorded in the cases of Muhammad Ismail and others, Abdul Qayywn and another and Noor (1) 1985 S C M R 112 (2) 1982 C L C 700 (3) P L'p 1986 S C 360 Muhammad which were relied upon by learned counsel for the appellants. Learned counsel for the respondents did not cite any law or authority to the contrary. It was also not disputed by him that before the coming into force of the said Ordinance, the respondents had not abandoned the plea of tenancy. I, therefore, hold that on the commencement of the said Ordinance, the respondents' suit stood transferred to the Collector an thereafter the civil Court was not left with any jurisdiction to hear o decide the suit till it was returned to it (civil Court) by the Collector after repelling the plea of tenancy raised by the respondents.

6. Before proceeding further, it will be pertinent to point out that during the pendency of the first appeal the respondents made an application abandoning the ground of tenancy. No order was passed by the learned Additional District Judge on the said application till the disposal of the first appeal by him. Abandonment of the said plea at the stage of the first appeal, to my mind, was immaterial because the suit stood transferred to the Collector by operation ‑of law long before its abandonment at that 8 stage. Similarly, the appellants' failure to object to the jurisdiction of the! learned trial Curt, before the stage of final arguments, was of little consequence. It is well‑established principle of law that consent of parties cannot confer jurisdiction on a Court if it otherwise lacks jurisdiction. It has also been repeatedly laid down by the superior Courts that the question of jurisdiction or law can be raised at any stage. Haji Abdullah Khan and C others v. Nisar Muhammad Khan and others (1), Firm of Rai Bahadur Bansilal Abirchand v. Ghulam Mahbab Khan and another (2) and Muhamma Abdullah v. Municipal Committee, Gujranwala (3) are some of the authorities in point. Resondents cannot, therefore, make capital out of delay on the part of the appellants in the matter of agitating the question of jurisdiction.

7. In result, I hold that the judgments and decrees passed by the two Courts below are without jurisdiction. This second appeal is, accordingly, accepted, judgments and decrees passed by the learned lower Courts are set aside, and the case is sent to the Collector (Assistant Commissioner), Sheikhupura. If the respondents want to abandon the plea of tenancy before the learned Collector, they may do so ; and on their so doing, the Collector shall make appropriate order keeping in view the above observa tions. If, however, the above plea is not abandoned by the respondents, the Collector shall proceed further with the matter in accordance with law. Needless to say that while so doing, he shall examine the effect of judgment in the aforementioned case of Government of N.‑W. F. P. through Secretary, Law Department. Parties shall appear before the learned Collector on 26th March, 1987. Record of the suit shall be sent to him immediately.

8. In view of peculiar circumstances of this case, I leave the parties to bear their own costs. A. A./m‑120/L Appeal accepted. (1) P L D 1965 S C 690 (2) A I R 1925 P C 290 (3)P L D 1967 Lab_ 1011