2002 PLP 1796 (CLC)

(4) Whether the plaintiffs have no cause of action and locus standi to bring this suit? OPD (5) Whether the plaintiffs are estopped by act and conduct to bring this suit? OPD (6) Whether the plaintiffs have fulfilled the essentials of Talbs? OPP (7) Whether the sale price of the suit land Rs.20,000 was fixed and actually paid in good faith? If not what was the market value of the suit land at the time of its sale'? OPD (8) Whether the plaintiffs have got superior right of pre‑emption qua the defendants against the suit land? OPP (9) Whether the suit has been improperly value for the purpose of court‑fee and jurisdiction? If so, its correct valuation? OPD (10) Relief.

2. The trial Court fixed the case for preliminary arguments on Issues Nos. 1 and 2 which are to the effect that:‑‑ (1) Whether the suit is hit by Order 32, rule 2, C.P.C.? OPD (2) Whether the suit is hit by part pre‑emption? OPD Vide order, dated 31‑5‑1992, the Court gave findings on the said issue against the, defendants‑respondents and in favour of the plaintiffs- petitioners.

3. Feeling aggrieved, the defendants‑respondents preferred a revision petition which came up for hearing before District Judge, Jhang, who vide his judgment, dated 23‑1‑1993 accepted the same, set aside the findings of the trial Court on Issues Nos.1 and 2 and dismissed the suit of the plaintiffs‑petitioners.

4. Learned counsel for the petitioners contended that the District Judge had passed the judgment on speculated assessment and without recording the evidence dismissed the suit. He further contended that the revisional Court could not reappraise or substitute its findings on question of fact and the revisional Court has exercised its jurisdiction, illegally with material irregularity so vested in it. He relied on case of Muhammad Swaleh v. United Grain and Fodder Agencies PLD 1964 SC 97.

5. Conversely the learned counsel for the respondents vehemently opposed the arguments of the learned counsel for the petitioners and supported the judgment of the revisional Court contending that from the record the partial pre‑emption is established and the plaintiffs‑petitioners have only filed the suit with record to 8 Kanals, 14 Marlas land out of 14 Kanals, 14 Marlas sold property.

6. I have heard the arguments of the learned counsel for the parties and perused the record.

7. The question that boils down for determination in this case is that whether the suit was filed to pre‑empt the whole of the land sold by the vendor or some part of the land has not been pre‑empted. The plaintiffs have filed a suit to pre‑emption 8 Kanals, 14 Marlas of land out of 14 Kanals, 14 Marlas. The plaintiffs' stand is that 6 Kanals land out of the sale has been decreed in favour of Ahmad Khan vide a judgment and decree, dated 15‑12‑1991.

8. Ahmad Khan son of Muhammad Khan had instituted a suit for specific performance of contract against Muhammad Ramzan vendor with regard to agricultural land situated in Square No. 188, Killa No. 11‑4 Kanals, and Square No.20/2 Mauza Roroo Sultan measuring 6 Kanals. From checking of both the plaints i.e. suit for specific performance of contract and suit for possession through pre‑emption, it reveals that the land subject‑matter of the suit for specific performance of contract, is not part of the land sold by Muhammad Ramzan vendor, therefore, mutation of Sale No. 1769 attested on 24‑11‑1991. The plaintiffs have given the details in the heading as well as in para. No. l of the plaint. From the scrutiny of the record it is manifestly clear that the vendor has sold 14 Kanals, 14 Marlas agricultural land in favour of defendants- respondents. The detail and description of the sold pre‑empted property has been mentioned in the plaint and in para. No.12 of the plaint, the plaintiffs‑petitioners have stated that the suit is being filed against 18 Kanals, 14 Marlas of land including 6 Marlas land decreed in favour of Ahmad Khan. According to the plaintiffs, the 6 Marlas land decreed in favour of Ahmad Khan is the part of the disputed sale. The plaintiffs have I not annexed with the plaint any copy of record of rights to establish their, case. From the record available on the file of the Court it stood sufficiently proved that the principle of partial pre‑emption is attracted to the present case and the plaintiffs‑petitioners themselves had not stood by their case. While filing the suit, the plaintiffs- petitioners have not scrutinized the decree passed in suit for specific performance and the mutation of the sale wherein the specific numbers of the property sold by the vendor have been narrated. They revisional Court has taken into consideration the averments of both the plaints filed by the petitioners as well as by Ahmad Khan. The property subject‑matter in suit for specific performance is different than that of the property in dispute and it was never part or included in the mutation of Sale No.1269. The revisional Court has exercised its jurisdiction so vested in it legally.

9. Learned counsel for the petitioners has not been able to make out a case in exercise of Constitutional jurisdiction of this Court under Article 199 of the Constitution. It is pertinent to mention here that no writ would lie against a judgment or order passed by a Court in exercise of jurisdiction under section 115, C.P.C. unless it is established that the judgment or order has been passed illegally or without lawful authority. Reliance in this context can be placed on cases of Sattan v. Waryam 1998 CLJ 59, Khawaja Sharif v. Additional District Judge 1991 CLC 254, Khadim Hussain v. Additional District Judge NLR 1991 Civil 354, Mamoon Rashid v. Kokub Noorani PLD 1999 Kar. 253, Muhammad Zahoor and another v. Lal Muhammad and 2 others 1988 SCMR 322 and Hassan Din v. Hafiz Abdus Salam and others PLD 1991 SC

65. For the foregoing reasons, this writ petition having no force is dismissed. H.B.T./B-100/L Petition dismissed.