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Writ Petition No. 2620 of 1982, decided on 26th September, 1982.

--------S. 15‑Pre‑emption‑Pre‑emptor filing two suits for pre‑emption one on basis of being co‑sharer of land in Civil Court and other on basis of being cultivator before Collector‑During pendency of suit before Collector civil suit decreed exparte‑Contention that respondent‑pre emptors having not got ex pane decree executed as such estopped from pre‑empting disputed land before Collector‑Contention, held, has no force‑Only adverse inference, due to non‑execution of ex parte decree can be abandonment of right on basis of being co‑sharer.

Ch. Muhammad Husain Naqashbandi for Petitioners.

The facts giving rise to this writ petition are that certain land was purchased by the petitioners, Mansab Khan and another. Two separate suits were filed by respondent No. 3, Fateh Khan, hereinafter referred to as the respondent, to pre‑empt the said land. One of the suits was instituted before the Civil Judge, Chakwal, District Jhelum, alleging that the respon dent was co‑sharer of the land in question. The other suit was filed by him before the Collector (Assistant Commissioner), Chakwal, District Jhelum, on the plea that he was cultivating the land in dispute as tenant at the time of its sale in favour of the petitioners. During the pendency of the suit before the learned Collector, the suit before the Civil Court was decreed ex parte. One of the issues framed in the suit before the learned Collector was in regard to the plea raised by the petitioners that the respondent was estopped from bring ing that suit. The said issue was decided against the respondent with the result that the suit was dismissed by the learned Collector. His judgment and decree were challenged by the respondent by taking an appeal before the Additional Commissioner (Revenue), Rawalpindi Division, Rawalpindi, which was accepted. The learned Additional Commissioner reversed the finding of the learned Collector on the question of waiver and decreed the suit. The petitioners then went in revision before the Member (Revenue), Board of Revenue, Punjab, but without success. They have, therefore, invoked the Constitutional jurisdiction of this Court.

2. It was contended by learned counsel for the petitioners that the respondent did not execute the ex pane decree obtained by him in the civil suit and, therefore, he was estopped from pre‑empting the disputed land by means of the suit filed before the learned Collector. It was precisely this plea which had found favour with the learned Collector when he decided the question of estoppel against the respondent.

3. I am unable to agree with learned counsel for the petitioners. The conduct of the respondent shows that he was very keen to have the land in dispute. That is why be had filed two suits for the purpose. One suit was taken to the Civil Court because his claim in that suit was based on the qualification of being a co‑sharer in the disputed land and that claim could not be taken cognizance of by the learned Collector. In the suit before the learned Collector it was alleged by the respondent that he was cultivating the disputed land as a tenant and, therefore, he had the first right of pre‑emption. This claim of the respondent could be adjudicated upon by the learned Collector only. By bringing the said suits it was clearly demonstrated by the respondent that he wanted to make use of all the qualifications available to him for getting the land in dispute. There is no evidence indicating that before bringing the two suits, the respondent had said or done any thing to waive his right of pre‑emption. The only evidence produced by the peti tioners which was relied upon by the learned Collector for deciding the issue of estoppel against the respondent was with regard to the passing of the ex parte decree in the civil suit during the pendency of the suit before the learned Collector. There is, however, nothing on the record to show that no application was made by the petitioners to have the ex parte decree set aside. It is also not known that if any such application was made what was the result thereof. Even if it is assumed that the ex parte decree was never set aside an its execution was also not sought by the respondent, the only adverse inference which can be drawn against him would be that he had abandoned his right to get the disputed land for being its co‑sharer. The right asserted by him before the learned Collector was based on the plea of tenancy which has never been given up by the respondent in any manner whatsoever. It is, therefore, not correct to say that the respondent was estopped from filing suit before the learned Collector.

4. In this view of the matter, the orders of the learned Member, Board of Revenue, and the learned Additional Commissioner do not call for any interference by this Court. The writ petition is dismissed in limine.

M. Y. M' Petition dismissed.

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