Find a Lawyer

Writ Petition No. 1257 of 1981, decided on 9th June., 1982.

‑‑‑‑Art. 199=Contention that Board of Revenue did not decide any of points agitated by petitioners in revision, waiver of right of pre‑emption as recorded by Additional Commissioner involving determination of a mixed question of law and fact never touched upon by Board‑Collector never ordered petitioner to make up deficiency in court‑fee nor petitioner exhibited any negligence or contumacy in matter of payment of court‑fee‑Respondents not controverting arguments of petitioners‑Counsel of parties agreeing as to case being. fit for remand‑Impugned order, set aside, in circum stances and case remanded to Board of Revenue for fresh decision according to law after hearing parties.

Talib H. Rizvi for Petitioners.

Nemo for Respondent No. 1.

Muhammad Hanif Niazi for Respondents Nos. 3 to 7.

Date of hearing : 9th June, 1982.

This writ petition impugning the validity of the judgment of the Additional Commissioner (Revenue), Lahore Division, dated the 29th December, 1980, whereby the decree in the suit for possession by pre emption of 8 kahals 17 marlas of land in dispute situate in the area of village Hanjarai Kalan, Tehsil Chunian, District Kasur, passed by the Collector, Chunian, on the 15th May, 1980, in favour of the petitioners and against respondents 3 to 7 was reversed and of the order of the Member (Revenue), Board of Revenue, Punjab, dated the 3rd February, 1981, dismissing the petitioners' revision petition against the judgment of the Additional Commissioner arises out of the following circumstances. Mst. Ahmadi Begum, etc., sold 139 kanals 11 marlas of land to respondents 3 to 7, for an ostensible sale consideration of ,Rs. 60,000 and mutation No. 1783 was sanctioned on the 1st April, 1974, in respect of the sale. Claiming themselves to be in the enjoyment of right of pre‑emption superior to that of respondents 3 to 7 on the basis of the fact that the land to dispute comprised m their tenancy, Umar Din and Shahabud Din, petitioners, instituted suit to pre‑empt the sale on the 16th June, 1976. Respondents 3 to 7 contested the suit on the grounds, inter alia, that the petitioners were estopped by their word and deed from bringing the suit and that the amount of court‑fee paid by them on the plaint was deficient. As respondents 3 to 7 did not produce any evidence on the point relating to sufficiency of court‑fee to, indicate as to bow the court‑fee paid by the petitioners was deficient the Collector decided the issue in the petitioners' favour. Also on the evidence brought on the record he held that the petitioners were not estopped from bringing the suit. By his judgment of the 15th May, 1980, he decreed the suit for possession of 8 kanals 17 marlas of land on payment of Rs. 3,806 by the petitioners.

2. In appeal preferred by respondents 3 to 7 the Additional Commissioner took the contrary view that the petitioner had waived their right to pre‑empt the sale. Also he blamed the petitioners for having defaulted in‑getting prepared the statement of net profits of the land in dispute and paying court‑fee on the basis thereof. Therefore, he accepted the appeal and set aside the decree of the Collector.

3. Feeling aggrieved by the order of the Additional Commissioner the petitioners went in revision before the Board of Revenue. The Member (Revenue) dismissed their revision petition in limine.

4. the learned counsel for the petitioners, contended that the Member, Board of Revenue, did not decide any of the points agitated by the petitioners in revision before the Board. He submitted that the petitioners had challenged the correctness of finding of waiver of right of pre‑emption recorded by the Additional Commissioner, which involved determination of a mixed question of law and fact, but the Member had not touched upon it. Again he argued that the order of the Additional Commissioner accepting respondents 3 to 7's appeal on account of deficiency in court‑fee paid by the petitioners was illegal as the petitioners had never been ordered by the Collector to make up deficiency in court‑fee nor they had exhibited any negligence or contumacy in matter of payment of court‑fee.

5. The learned counsel for contesting respondents 3 to 7 could not enter caveat to the argument of the learned counsel for the petitioners that the order of the Member, Board of Revenue, did not deal with the points raised in revision by the petitioners. He had to concede that unless the Member dealt with and gave his verdict on the validity of the Additional Commissioner's findings on the controversional issues pertaining to waiver and sufficiency of court‑fee it could not be said that he passed a valid order disposing of the revision petition. The learned counsel for the parties were at one on the point that the case should be remanded to the Board for fresh decision. This petition is accordingly accepted, the impugned order of respondent 1 is declared to be of no legal effect and the revision petition filed by the petitioner before the Board of Revenue is remanded to the Board for decision according to law after hearing the parties. There will be no order as to costs.

M.Y.H. Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.