1993 PLP 1465 (SCMR)

SAEEDUZZAMAN SIDDIQUI, J: ‑‑The above petition arises out of a suit for pre‑emption brought by the respondent to pre‑empt the sale of a piece of land purchased by petitioners/vendees from its owner. The suit was decreed by the trial Court but on appeal the first appellate Court reversed the judgment and decree of the trial Court and dismissed the suit for pre‑emption. In RSA No. 170 of 1979 filed by the respondent against the judgment and decree of first appellate Court, the learned Judge in Chambers reversed the findings of first appellate Court and restored the judgment and decree of trial Court. The petitioners/vendees have now filed the above petition in this Court seeking leave to appeal against the judgment and decree of learned Judge in Chambers, dated 2‑6‑1992. The learned counsel for the petitioners contends that the suit filed by the respondent was based on the right of tenancy as well as co‑ownership in the pre‑empted land but during the pendency of the said suit paragraph 5 of M.L.R. 115 was amended by the Land Reforms (Amendment) Ordinance, 1976 which provided that all suits for enforcing the right of pre‑emption in respect of land comprised in the tenancy which were pending on the date of enforcement of the Amendment of Ordinance shall be exclusively tried by the Collector within whose jurisdiction the land in respect of which right of pre emption has been claimed was situated, and all such suits shall stand transferred to the Collector concerned. The learned counsel for the petitioners, accordingly, contended that the suit instituted by the respondent before the Civil Court to enforce the right of pre‑emption on the basis of right of tenancy in the land could not be proceeded before the Civil Court after the date of enforcement of the Amended Ordinance of 1976 and the suit should have been transferred to the Collector concerned in accordance with amended paragraph 25 of MLR

115. The learned counsel for the respondent/caveator, on the other hand, contends that the suit filed by the respondent was based not solely on the right of tenancy in the disputed land but the respondent also claimed to be the co‑owner of the land. The learned counsel for the Caveator further contended that after the amendment in paragraph 25, MLR 115, the respondent had abandoned his claim with regard to right based on tenancy and had confined his prayer in the suit only on the right of co‑ownership in the land. There appears to be some conflict of opinion between the learned Judges of Lahore High Court with regard to the competence of a suit before the Civil Court after amendment of paragraph 25 of MLR 115 in which the right of pre‑emption was claimed on the basis of tenancy as well as other grounds. The learned counsel for the petitioners has cited the cases of Muhammad Ramzan and others v. Nur Muhammad PLD 1987 Lah. 268 and Abdul Qayyum v. Zubaida Khan 1982 CLC 700 in which the view expressed by the learned Judges supported the contention of the petitioners, while the view taken by the learned Judge in Chambers in the present case is not in consonance with the views expressed in the above‑cited cases. The learned counsel for the parties admit that there is no decision by this Court directly on the point. The point noted above, therefore, needs authoritative pronouncement by this Court in view of the conflict of opinion amongst the Judges of High Court. Leave is granted, accordingly. M.BA./A‑1108/S Leave granted.