1983 PLP 2946 (CLC)

Art. 199‑Pre‑emption‑Revision petition‑issue of waiver and court‑fee‑Unless Board of Revenue give verdict on validity of Additional Commissioner's findings, valid order, in revision petition can not be passed. Rizvi for Petitioner. Hanif for Respondent. Date of hearing : 9th June, 1982. This writ petition impugning the validity of the judgment of the Additional Commissioner (Revenue), Lahore Division, dated the 29th December, 1980 whereby the decree in the suit for possession by pre‑emp tion of 42 kanals 10 marlas of land in dispute situate in the area of village Ranjarai Kalan, Tehsil Chunian, District Kasur, passed by the Collector Chuuiainl on the 15th May, 1980 in favour of the petitioner and against respondents 3 and 4 was reversed and of the order of the Member (Revenue), board of Revenue, Punjab dated the 3rd February, 1981, dismissing the petitioner's revision petition against the judgment of Additional Commis sioner arises out of the following circumstances. Mst. Ahmadi Begum etc. sold 62 kanals 2 marlas of land to respondents 3 and 4 for an ostensible sale consideration of Rs. 19,146.00 and mutation No. 1775 was sanctioned on 1st April, 1974, in respect of the sale. Claiming himself to be in the enjoyment of right of pre‑emption superior to that or respondents 3 and 4 on the basis of the fact that the land in dispute comprised in his tenancy, Hakam Ali, father of the petitioner, instituted suit to pre‑empt the sale on the 16th June, 1976. Respondents 3 and 4 contested the suit on the ground, inter alia that the petitioner was estopped by his word and deed from bringing the suit and that the amount of court‑fee paid by the petitioner's father on the plaint was deficient. As respondents 3 and 4 did not produce any evidence on the point relating to sufficiency of court‑fee to indicate as to how the court‑fee paid by the petitioner was deficient the Collector decided the issue in the petitioner's favour. Also on the evidence brought on the record he held that the petitioner was not estopped from bringing the suit. By his judgment of the I 5th May, 1980 he decreed the suit for possession of 42 kanals 10 rnarlas of land on payment of Rs. 12,667 by the petitioner.

2. In appeal preferred by respondents 3 and 4 the Additional Commissioner took the contrary view that the petitioner had waived his right to preempt the sale. Also he blamed the petitioner for having defaulted in getting prepared the statement of net profits of the land in dispute and paying court‑fee on the basis thereof. Therefore, he accepted the appeal and set aside the decree of the Collector.

3. Feeling aggrieved by the order of the Additional Commissioner the petitioner went in revision before .the Board of Revenue.. The Member, (Revenue) dismissed the revision petition in limine.

4. The learned counsel for the petitioner contended that the Member,, Board of Revenue, did not decide any of the points agitated by the petitioner' in revision before the Board. He submitted that the petitioner had chal lenged the correctness of finding of waiver of right of pre‑emption recorded by the Additional Commissioner, which involved determination of a mixed question of law and fact, but the Member had not touched upon it. Again he argued that the order of the Additional Commissioner accepting respondents 3 and 4's appeal on account of deficiency in court‑fee said b the petitioner was illegal as the petitioner had never been ordered by the Collector to make up any deficiency in court‑fee nor he had exhibited an negligence or contumacy in matter of payment of court‑fee.

5. The learned counsel for contesting respondents 3 and 4 could not enter caveat to the argument of the learned counsel for the petitioner that the order of the Member, Board of Revenue did not deal with the points raised in revision by the petitioner. He had to concede that unless the Member dealt with and gave his verdict or the validity of the Additional Commissioner's findings on the controversial issues pertaining to waiver an sufficiency of court‑fee it could not be said that he passed a valid order disposing on the revision petition. The learned counsel for the partied were at one/on the point that the case should be remanded to the Board for fresh decision. This petition is accordingly accepted, the impugned order respondent No. 1 is declared to be of no legal effect and the revision petition filed by the petitioner before the Board of Revenue is remanded to the Board for decision according to law after hearing the parties. There will no order as to costs. M. Y. M. ‑‑‑‑‑‑‑ Case remanded.