1988 PLP 1633 (SCMR)

SAAD SAOOD JAN, J.‑‑Respondent No.1 filed a suit for pre‑emption in respect of a sale effected through a mutation. The learned Collector framed two issues;'/namely, (i) did respondent No.1 possess superior right of pre‑emption and (ii) what was the consideration .for the sale. The learned Collector decided issue No.1 against respondent No.1 and dismissed the suit. Respondent No.1 filed an appeal before the Additional Commissioner. The learned Additional Commissioner accepted the appeal and held that he was a tenant and as such possessed a superior right. Accordingly, he remanded the proceedings to the Collector for trial of the other issues. The petitioner filed a revision petition before the Board of Revenue from the order of the Additional Commissioner but later withdrew it.

2. After the remand, the Collector framed a number of issues including one relating to the question whether respondent No.1 possessed superior right of pre‑emption but did not record any finding on it for the reason that this question already stood decided by the Additional Commissioner. After recording findings on the other issues, he decreed the suit. The, petitioner filed an appeal before the Additional Commissioner wherein he again agitated against the superior right claimed by respondent No.1 but he was not allowed to do so. He then filed a revision petition before the Board of Revenue. Before the Board, he reiterated his contention that respondent No.1 did not have superior right. A learned Member of the Board who heard the revision petition did not permit him to raise this issue on the ground that even though it was open to him to challenge the finding of the Additional Commissioner in the earlier round, he had not cared to do so. The learned Member then dismissed the revision petition. The petitioner invoked the constitutional jurisdiction of the High Court to call in question the decree passed against him by the Revenue Court but without any success. He now seeks leave to appeal from this Court.

3. The only contention raised in support of this petition is the question of superior right should have been re decided by the Collector after the order of remand particularly when the Collector had once again framed the issue on this controversy.

4. We find little merit in this contention. As rightly observed by the learned Member of the Board of Revenue that after the Additional Commissioner had recorded a definite finding on this controversy, it was open to the petitioner to challenge it in revision; his failure t do so was tantamount to the acceptance of that finding; that been so he could not be subsequently permitted to reopen that controversy. This petition is without any merit and is hereby dismissed. M.I./G‑115/S Petition dismissed.