2005 PLP 1711 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment, dated 30-10-2000 passed by a learned Single Judge of Lahore High Court, Lahore, in a Constitution petition arising out of a pre-emption matter.

2. The relevant facts in small compass are that the agricultural land measuring 83 Kanals 8 Marlas situated in Chak No.555/GB, Tehsil, Samundari, District Faisalabad, was purchased by the petitioner vide mutation, dated 28-3-1973. The respondents Nos.3 and 4 claiming superior right of pre-emption on the basis of the cultivating possession of the land as tenant pre-empted the sale by way of filing a suit before the civil Court which was subsequently sent to the Assistant Commissioner concerned exercising the power of Collector for adjudication. The suit was decreed by the Collector vide judgment, dated 28-4-1980. In appeal preferred by the petitioners against the decree, the Additional Commissioner (Revenue) vide his judgment, dated 14-11-1981 set aside the decree on the ground that since pre-emptors have lost the cultivating possession of the suit land before passing of the decree, therefore, the pre-emption suit must fail. The judgment in appeal was assailed by the respondents before the Board of Revenue through a revision petition and the Member Board of Revenue seized of the matter while setting aside the judgment in appeal restored the decree passed by the Collector. The petitioners being dissatisfied with the order passed by the Member, Board of Revenue, invoked the Constitutional jurisdiction of the High Court in the matter and a learned Single Judge vide the impugned judgment, dismissed the writ petition with the observation that the order passed by the Member Board of Revenue being not suffering from any illegality or jurisdictional defect would not call for interference of the High Court.

3. Learned counsel for the petitioner has contended that it is settled law that a pre-emptor must retain the superior right of pre-emption on the date of sale, on the date of institution of suit and on the date of decree to mature his right for a pre-emption decree but in the present case the respondents Nos.3 and 4 having failed to retain the cultivating possession of the suit-land as tenant on all the three crucial dates have lost the superior right and would not be entitled to the pre-emption decree. The learned counsel submitted that in absence of any evidence of forceable dispossession no such presumption could be raised and consequently, the finding on the pure question of fact relating to the manner in which the pre-emptors lost the possession of land prior to the passing of the decree in the suit arrived at by the Additional Commissioner (Revenue) in appeal, based on the sound evidence could not be disturbed by the Member Board of Revenue in the revisional jurisdiction.. We are afraid the mere fact that there was conflict of opinion of the Collector and the Additional Commissioner (Revenue) on the question relating to the dispossession of the respondents Nos.3 and 4 would not be a valid ground to question the legality of the order passed by the Member Board of Revenue in exercise of his revisional jurisdiction, and consequently the non interference of the High Court in the order passed by the Member Board of Revenue was to questionable. The learned counsel has not been able to highlight any jurisdictional error and legal defect in the impugned order through which the A judgment and decree passed by the Additional Commissioner in appeal was reversed and the decree passed by the Collector was restored. The reversal of the decree passed in the pre-emption suit in appeal by .the Member Board of Revenue on a mixed question of law and fact in exercise of his revisional jurisdiction as a final Court on the Revenue side would not be assailed before. the High Court in its extraordinary jurisdiction under Article 199 of the Constitution. The controversial question of facts settled at the level of Board of Revenue would not be open to challenge in the writ petition and consequently the impugned judgment would not call for interference of this Court: This petition having no substance is dismissed. Leave is refused. M.H./S-303/S Petition dismissed.