1994 PLP 1927 (MLD)

Petition under Article 199 of the Constitution against an order, dated 30-7-1983 of learned Member, Board of Revenue, Punjab, reversing that of the Additional Commissioner (Revenue) passed on 7-12-1980, arose from a pre-emption suit decided, in the revenue hierarchy under para. 25 of Lands Reforms Regulation, 1972. Facts are these:

Fateh Din owned 78 Kanals 2 Marlas of land, Village Wara Thatta Muhammad Shah in Tehsil Chiniot of District, Jhang. By mutation No.1147, sanctioned on 8-7-1974, he sold above land to Najabat, Shahadat and Mamoon, respondents 3 to 5 for a consideration of Rs.18,000, Petitioners, namely Ghulam Sarwar, Abdul Hamid, Muhammad Siddique and Abdul Majid sons of Fateh Muhammad claimed pre-emption in respect of the above sale. Superior right of pre-emption was asserted on the ground of being collaterals. Pre-emption suit was instituted on 8-7-1975, in the civil Court at Chiniot. Despite service, vendees of the land did not appear at the trial of the suit. Consequently, pre-emption suit was decreed ex parte on 19-1-1976, in favour of the petitioners, subject to their paying Rs.18,000 (minus Zar-e-Panjum already deposited) before 19-2-1976, and in default, the suit was to stand dismissed. Pre-emption money was deposited in time fixed in the ex parte decree. Vendees applied to the trial Court for setting aside of the ex parte decree against them. Other side resisted the application. It was dismissed on merits on 25-9-1977, by the trial Court. Further, appeal or revision from the original ex parte decree or the order refusing to set it aside was not taken up. Therefore, the pre-emption decree in favour of the petitioners attained finality under the Law. The rival Pre-emptor-Hassan was not a party to the pre-emption suit filed by the petitioners and decreed in their favour. Hassan was father of the vendees. He claimed to be tenant-in possession of the land sold in favour of his sons and brought a suit for pre-empting the sale in the civil Court. Date of filing of the pre-emption suit by him was not ascertainable on the present record. Upon coming into force of Ordinance XX of 1976, on 17-5-1976, pre-emption suit instituted by Hassan was transferred to the file of Collector, Chiniot for its trial. Transfer was made on 10-12-1976. Petitioners were made parties to his suit tried by the Collector. On 15-6-1977, vendees compromised the suit with f-Iassan-Pre-emptor and agreed for a pre-emption decree in his favour upon payment of Rs.18,

000. In the compromise, it was stated that, minus Zar-e-Panjum, pre-emption money was received. Photocopy of the compromise statement was placed on the file of this Court today. In sequel to the settlement, pre-emption suit brought by Hassan was decreed against his sons, on 23-6-1977. Obviously, the petitioners protested to the passing of the compromise decree in favour of Hassan. The Collector left them for a remedy in the civil Court and it was so stated in his order dated 23-6-1977. Some time later, an application under section 152 of Civil Procedure Code was filed for correction of the pre-emption decree. It was stated that it was not in accordance with the compromise between the parties and a direction for a deposit of pre-emption money before a specified time was wrongly made part of the pre-emption decree. Without notice to the petitioners, application for correction of pre-emption decree was allowed on 27-8-177. Petitioners preferred an appeal against the judgment and decree of the Collector dated 23-6-1977, and, also questioned his competence to review it subsequently. On 7-12-1980, Additional Commissioner (Revenue), Sargodha Division allowed the appeal and set aside the impugned judgment and decree passed by the Collector on 23-6-1977. Sum total of his conclusions is contained in para. 5 of his order. It runs as:

"Hearing the arguments of learned counsel of the appellants and a perusal of the record, I find that the learned AC/Collector did not rightly adjudicate into the matter. Respondent No.1 is the father and the respondents Nos. 2 to 4 are his sons. Respondents Nos. 2 to 4 made statements in favour of the respondent No.1 and the suit was decreed. At this time, these respondents .had no right to make the statements as it was in their knowledge that the suit of the appellants had already been decreed against them by the civil Court on 19-1-1976. The other point for consideration is that the decree by the AC/Collector, Chiniot was passed on 23-6-1977 and he ordered to deposit the price within three weeks. He reviewed his own order on 28-7-1977 which was not competent because the Court had become functus officio regarding the price of the land after passing a decree on 23-6-1977. The result of the above discussion is that the impugned decree passed by the AC/Collector is not maintainable. The appeal is, therefore, accepted, and, the impugned judgment/decree is set aside." Aggrieved of the decision, Hassan preferred a revision to Board of Revenue. As said above, it was allowed on 30-7-1983, by a learned Member of the Board. He said:

"I have heard the learned counsel for the parties and examined the facts of the case. I find that a serious error of law has been committed by the Additional Commissioner in holding that the pre-emption decree by Civil Court would supersede the pre-emption decree granted under M.L.R. 115 on the basis of superior right of tenancy. The law on this point is very clear and does not admit of any ambiguity. M.L.R. 115 gives superior rights of pre-emption to the tenant, which would take effect even if there was a pre-emption decree granted by the Civil Court under the Pre-emption Act. On this ground, the revision petition is accepted and the order of the Additional Commissioner (Revenue), Sargodha, dated 7-12-1980 is set aside". This order of the Member, Board of Revenue, was assailed in writ jurisdiction by the petitioner. Writ petition was admitted on 27-5-1984, by me. Learned counsel for the rival parties have been heard at length. Mr. Talib H. Rizvi, Advocate was away to Karachi in connection with the case of Mr. Zardari, the husband of ex-Prime Minister of Pakistan. Request for adjournment on his behalf was made by his colleague-in-Chamber. Having regard to the nature of dispute and its old-age, it was not considered appropriate to make adjournment. Above-said facts were taken from Mr. M.Z Khalil learned counsel for respondents. These were not materially controverted by the learned counsel appearing for Mr. Rizvi, Advocate. Hassan was not party to the pre-emption suit filed by the petitioner, nor was he a party to the proceedings taken for setting aside of the ex parte decree. As far the pre-emption suit filed by Hassan on ground of tenancy, petitioners were made parties. However, it was not known, whether they gave any defence to the pre-emption suit filed by Hassan. Naturally, they must have contested his suit and supported the decree in their favour. By compromise of the vendees with their real father acknowledging his superior right of pre-emption, pre-emption suit was not allowed a trial on its merits and petitioners were elbowed out of the arena without an opportunity of a fair defence about their rights. When they protested to the recording of compromise, the Collector tried to satisfy them by pushing them to a Court of competent jurisdiction for the relief but the Court he was pushing them to was not disclosed. In appeal, his decision was reversed, but, on revision, it was vacated and that of the Collector restored. From the abovementioned facts and the events, it was evident that miscarriage of justice and misapplication of Law ruled in the Revenue hierarchy. Consent decree was but a contract to which a seal of the Court was A super-added and nothing more. By a contract between a father and his sons, a third party could not be denuded of its legal rights and that was what had been done, not only at the primary level but at the apex of Revenue hierarchy. Therefore, I have not been able to uphold the final decision. In result, petition is allowed, impugned judgments and decrees passed in favour of respondent-Hassan are set aside and the pre-emption suit filed by him is remanded to learned Collector, Chiniot for deciding of it afresh on merits in accordance with law. Needless to add that the trial Court shall frame necessary issues, take evidence on them and record decision on merits. Further, legality as well as propriety of review order shall also fall for scrutiny and decision afresh by learned Collector. It may be observed that Hassan died during the pendency of the writ petition on 4-9-1986. His legal representatives were substituted for him on records. They included the vendees and some others. They were represented by learned counsel at the hearing. There shall be no order as to costs in this Court. A.A./G-110/L Case remanded.