1998 PLP 488 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The Petitioner is seeking leave to appeal against the order of a learned Judge in chambers dated 15-8-1995 whereby Writ Petition No.984 of 1995 filed by the petitioner was dismissed in limine. The relevant facts of the case are that agricultural land measuring 152 Kanals, 10 Marlas situated in Miani Bergi Tehsil Gujjar Khan was sold to Muhammad Khan and Jalal Din through Mutation No.450 which was attested on 6-10-1972. Four pre-emption suits were filed in the Court of Civil Judge, Gujjar Khan, which were subsequently transferred to A.C./Collector Gujjar Khan for disposal in accordance with the law. The Collector by judgment dated 4-5-1981 dismissed the suit filed by the Petitioner. On appeal the order of Collector dismissing the suit of the petitioner, was set aside and the case was remanded for fresh decision. As a result of the remand of the case the Collector reheard the suit filed by the Petitioner and decreed the same to the extent of 29 Kanals 7 Marlas. Against the decision of Collector dated 29-11-1984 decreeing the suit of the petitioner to the extent of 29 Kanals 7 Marlas, Muhammad Khan, respondent No.4 herein, preferred an appeal before the Additional Commissioner (R) Rawalpindi who modified the judgment and decree of the Collector to the extent that an area only 19 Kanals was allowed in favour of the Petitioner against payment of Rs.19,

931. The claim in respect of land comprised in khasra No. 124'9 was dismissed. The petitioner was allowed time to deposit the remaining amount of pre-emption money by 15-12-1995 with A.C. Collector Gujjar Khan. Against the decision of Additional. Commissioner (R) Rawalpindi dated 31-10-1985 the Petitioner preferred a revision petition before the Member Board of Revenue, which was dismissed on 24-8-1989, The petitioner thereafter submitted review petition under section 7 of the Board of Revenue Act which too was dismissed on 19-2-1995. Thereafter, the petitioner filed writ petition before the Lahore High Court which came to be dismissed by the impugned judgment. The learned counsel for the petitioner in seeking leave to appeal against the judgment of learned Judge in Chambers has repeated the contentions which were repelled by the learned Judge in Chamber in the impugned judgment as follows:-- "

4. The learned counsel for the petitioner, in support of this petition, repeated the points which he had taken before Member, Board of Revenue. He, fiercely, submitted that the learned Member, Board of Revenue had not taken into consideration Khasra Girdawari Exh.D/1 which clearly demonstrated that the petitioner/pre-emptor was in possession of the entire suit land. He, however, while arguing the case, frankly conceded that the crucial Khasra Girdawaris relating to Rabi 1972, Kharif 1972 and Rabi 1973 and Kharif 1973 were not at all produced by the petitioner/plaintiff in the court of first instance. He, however, banked upon the Khasra Girdawari pertaining to year 1975. It is a settled law that in order to succeed, pre-emptor has to show his superior right of pre-emption at the time of sale, at the time of institution of suit and at the time of decree. The sale undeniably was made through Mutation No.450 which was attested on 24-10-1972. Evidently, the Khasra Girdawaris pertaining to Kharif 1972 and Rabi 1973 were material but no effort whatsoever was made by the petitioner to produce those Khasra Girdawaris. Even no credible material was brought on record to substantiate that he was in possession of the pre empted property as a tenant at the relevant time of sale. This being the state of affairs, the concurrent conclusions of the learned Additional Commissioner (Revenue) Rawalpindi dated 31-10-1985 and the learned Member, Board of Revenue dated 21-8-1989 and 19-2-1995 are eminently correct, just and in consonance with the provisions of law. These conclusions neither suffer from any jurisdictional error nor from any misreading and non-reading of the evidence and so are not exceptionable in Constitutional jurisdiction." The learned counsel for the petitioner does not dispute that Khasra Girdawari relating to Rabi 1972 and Kharif 1972 and Rabi 1973 and Kharif 1973 were not produced at any stage of the proceedings. It is also not disputed by the learned counsel for the petitioner that a pre-emptor under the law must establish his superior right of pre-emption both at the time of sale of the pre empted property, at the time of institution of the suit and also at the time of passing of the decree in his favour. The sale having taken place on 24-10-1972 the pre-emptor was bound to show that he was in possession as a tenant on the land on the date of the sale. There being no evidence on record in support of the claim of the petitioner, the Courts below rightly rejected his claim. No case for interference with the judgment of the learned Judge in Chambers has been made out. The petition is, accordingly, dismissed and leave is refused. A.A./M-3280/S Petition dismissed.