1998 PLP 133 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

This is a petition for special leave to appeal from the judgment of a learned Single Judge, Lahore High Court, Rawalpindi Bench, Rawalpindi, declining review of his judgment dated 15-9-1995 in Writ Petition No.301 of 1984.

2. Brief facts forming the background of this controversy are that iand measuring 5K-16M bearing Khasra No.1230 situate in Village Bhoun, Tehsil and District Chakwal, was purchased by the petitioner. The predecessor-in -interest of the respondents, namely, Murid, pre-emptor filed a suit of pre emption against the sale claiming superior right of pre-emption. The contest in this suit took place substantially on Issue No.II "whether the plaintiff has a superior right of pre-emption qua the defendant? OPP". Murid pre-emptor claimed superior right of pre-emption on the sole ground that he happened to be at the relevant time the tenant of the land in dispute. The learned Assistant Commissioner, Chakwal, exercising the powers of Collector, upheld that plea on the ground that oral and documentary evidence substantiated the plea of the predecessor-in-interest of the respondents that he was a tenant of the land in dispute. The plea of Sher Zairian petitioner-vendee was that in Khasra Girdawari of Kharif, 1980, the Circle Girdawar on an application moved by him for correction of revenue record had corrected wrong entries whereby Murid pre emptor was recorded as tenant and that, therefore, he was no more a tenant of the land as he has not been able to maintain hip status as a tenant at the time o.` the decree in his favour. The learned Collector observed that the vendee got the entries altered in his favour in connivance with the field revenue staff to defeat the superior right of pre-emption claimed by Murid pre-emptor. The oral evidence adduced by the petitioner in support of this plea was also held to be not worthy of reliance. The first Appellate Court also upheld this finding mainly on the ground that "the question to consider in such cases is that the respondent who had filed a pre-emption suit in the Court of he Collector of Sub-Division how it is possible that he will give up the cultivating possession of the suit land, when his suit for pre-emption was pending decision and he was sticking to his guns. The position taken by the petitioner was that he started cultivation of the suit land in Kharif 1980 and, therefore, right of pre-emption is not maintainable". Nonetheless the Appellate Court thus held that the pre-emptor was the tenant of the suit land at the time of the sale. The learned Member, Board of Revenue (Punjab), exercising his revisional powers vide his order dated 28-2-1984, upheld the order of the learned Additional Commissioner (Revenue) holding that "in view of the concurrent findings of the lower Courts that the respondent was in cultivating possession of the suit land during the crucial period he found no ground to interfere by way of the revision".

3. Feeling still dissatisfied, the vendee challenged the findings of the three forums in the revenue hierarchy by filing Writ Petition No.301 of 1984. A teamed Single Judge in the High Court vide his order dated 15-5-1995 while holding that it was a settled principle of law in such cases that entries of Khasra Girdawari or other revenue record should not be changed during the pendency of the pre-emption suit regarding the land in question manifestly opined that the change in the revenue record was obviously manipulated and, therefore, "right of the tenant could not be defeated by having resort to such tactics". Instead of throwing challenge to the order of the learned Single Judge in the writ petition before this Court, the petitioner filed I.C.A. No.36 of 1995. The learned I.C.A. Bench of the Lahore High Court while relying on Mst. Karim Bibi and others v. Hussain Bakhsh and another (PLD 1984 SC 344) and Muhammad Abdullah v. Deputy Settlement Commissioner, Circle-I, Lahore (PLD 1985 SC 107), held that the I.C.A. was not competent as it arises out of proceedings wherein initially appealable decrees/orders had been passed. In this view of the matter, the petitioner sought the withdrawal of the I.C.A. which was allowed and thus the I.C.A. was dismissed on 26-9-1995 as withdrawn. The petitioner then as a last resort filed a review Petition No.26 of 1995 before the learned Single Judge who had initially dismissed his Writ Petition No.301 of 1984. But even then he remained unsuccessful and his review petition was dismissed on 20-11-1995. Hence this petition for leave to appeal.

4. Mr. Muhammad Ghani, Advocate Supreme Court, learned counsel for the predecessor-in-interest of the respondents, has reiterated before us his contention which he had advanced before the High Court that a plain reading of the proviso to subsection (2) of section 3 of the Law Reforms Ordinance, 1972 means that no appeal will be available or competent before a Bench of two or more Judges of a High Court from an order made by a 'Single Judge of that Court in a Constitutional petition, if such petition arises out of "any proceedings" in which the law applicable provided for at least one appeal against the original order. The law or this point is settled by this Court in the case of Mst. Karim Bibi and Muhammad- Abdullah (supra). The appeal before the I.C.A. Bench was clearly not competent and it has been rightly withdrawn.

5. As stated earlier, the writ petition was dismissed on 15-5-1995 while the petition for leave to appeal was filed on 16-1-1996 the intervening proceedings being incompetent could not provide extension in, limitation. The original record placed on the file would show that the application for the attested copies of the judgment was presented on 20-12-1995 and the date of the completion of the copies was 3-1-1996. It would be seen that even at the time of the presentation of the application for copies on 20-12-1995, the C.P.L.A. was barred by time. Even on this ground, this petition stands dismissed.

6. Mr. Muhammad Fayyaz Ahmad Khawaja, learned Advocate Supreme Court, appearing on behalf of the petitioner, invited our attention to the admission in his cross-examination to the effect that and therefore, contended that the pre-emptor having himself admitted the verification of defendant's possession by Girdawar was not possessed of superior right of pre-emption on the ground of the allegation that the record showed that the petitioner was in possession. This so-called admission, we are afraid, is being read out of context. Earlier in the cross-examination the vendee had refuted the suggestion that he was not in possession of the land in dispute both at the time of sale and also during the pendency of the proceedings before the forums in the revenue hierarchy. Thus the so-called admission being out of context and belied by the earlier stance of the pre-emptor is of no consequence. Again, the finding of all the three forums in the revenue hierarchy is that the land in dispute comprised in the tenancy of the pre-emptor. It is settled law that this Court will not interfere with the concurrent finding of fact recorded by the lower forums coupled with that of the High Court, when the finding is one of fact. Reference in this behalf can be profitably made to Muhammad Zaman and 10 others v. Muhammad Ramzan Khan (1993 SCMR 197) wherein on identical facts, it was held as follows:-- "In the circumstances we find no basis for interfering with the finding of the District Judge which was affirmed by the High Court that the -vendees were neither co-owners nor tenants in the Khatas of which the land purchased formed a part and that they did not possess a superior right-as against the respondent who was undoubtedly a co-owner in the two joint Khatas. Thus, the respondent's suit was rightly decreed by the learned District Judge. " The finding of fact that the predecessor-in-interest of the respondents was a tenant, therefore, it cannot be interfered at this stage.

7. Last but not the least, we approve of the dictum in Muhammad Safdar Ali Iqbal v. Sher Muhammad and 2 others (1980 CLC 520) of Lahore High Court that "whereas the proceedings under the pre-emption suit are of a judicial nature, the correction of Khasra Girdawari is an administrative act, meant only to correct the fiscal record. Consequently, any exercise on the administrative side will amount to interference with the course of justice."

8. In consequence we find no merit in this petition which is dismissed with costs. A.A./S-23/S Leave refused