1987 PLP 944 (SCMR)

‑‑‑S. 21‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Suit for pre‑emption‑‑Petitioner filing suit for pre‑emption in civil Court on ground of co‑partnership‑‑Respondent claiming pre‑emption as tenant before Revenue Forum and obtaining consent decree which was not challenged in High Court‑‑Petitioner's suit decreed subject to decree of Revenue Authorities‑‑Order impugned‑‑Held, decree from Revenue Forum not having been challenged in High Court y an independent proceedings, neither civil Court, nor District Court and High Court in proceedings arising out of civil suit filed by petitioner, could set aside judgment and decree passed in favour of respondent in revenue hierarchy‑ Condition attached to decree passed in favour of petitioner being lawful and proper, maintained‑‑Leave to appeal refused. Ch. Fateh Ali Cheema, Advocate Supreme Court and Ch. Muhammad Aslam, Advocate‑on‑Record for Petitioner. Mehdi Khan Advocate‑on‑Record for Respondent No.1. M.Saeed Beg, Advocate Supreme Court and S. Inayat Hussain, Advocate‑on‑Record (absent) for Respondent No.2. Date of hearing: 18th January, 1987. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment dated 20‑12‑1983 of the Lahore High Court; whereby petitioner's Civil Revision arising out of the dismissal of his pre‑emption suit, was dismissed. The petitioner had filed a suit for pre‑emption regarding sale of a parcel of land on the ground of co‑sharership. The respondent No.2 claiming to be a tenant also filed a suit for pre‑emption. The petitioner's suit was pending before the civil Court while that of the said respondent was before the revenue forum. The respondent initially impleaded the petitioner but ultimately having compromised the matter with the vendee, obtained a consent decree in the revenue forum on the finding that he was entitled to it on ground of being a tenant on the land in dispute. That decree was challenged by the petitioner up to the Board of Revenue, but without any success. He did not challenge the said decree any further in the High Court in its writ jurisdiction. In his own suit a decree for pre‑emption was passed on the condition that it would be subject to the decree passed in favour of the said respondent No.2 in the revenue hierarchy. The petitioner challenged this condition in appeal and revision. On meeting failure he has now sought leave to appeal. Although respondent No.2 the decree‑holder from the revenue forum, has been impleaded as a respondent, the decree passed in his favour was not challenged in the High Court by an independent proceedings whereby the judgment and decree passed up to the Board of Revenue could have been set aside. Neither the civil Court nor the District Court and the High Court in the proceedings arising out of civil suit filed by the petitioner, could set aside the judgment and decree passed in favour of respondent No.2 in the revenue hierarchy. In that context those judgments and decrees are not before this Court because they could not be challenged in a petition for leave to appeal against the dismissal by the High Court of a Civil Revision arising out of the pre‑emption suit. That being so, the decree passed in favour of the said respondent cannot be set aside in these proceedings, therefore, the condition attached to the decree passed in favour of the petitioner was lawful and proper. No justification has been made out for interference. This petition accordingly, is dismissed. M.I. /Y‑2/S Petition dismissed.