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Civil Petition for Special Leave to Appeal No. 777 of 1981, decided on 28th October, 1981.
(On appeal from the judgment and order of the Lahore High Court, dated 1‑6‑1981, in W. P. 1281/81).
Constitution of Pakistan (1973)‑
‑‑ Art. 185(3)‑Leave to appeal sought on ground of appeal of respondent being barred by limitation by one day and High Court and Member, Board of Revenue having failed to declare impugned order to be without lawful authority‑Held, point having not been raised before Additional Commissioner, High Court committed no illegality in not attaching any importance to question in exercise of its discretionary jurisdiction.
Muhammad Muzaffar Khan v. Muhammad Yusuf Khan P L D 1959 S C (Pak.) 9 ref.
Ch. Muhammad Hasan, Advocate Supreme Court and Rana Maqbool Ahmad, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 28th October, 1981,
‑The petitioner who claims to be a tenant of the suit land filed a suit in a revenue Court to pre‑empt the land comprised in his tenancy which was sold by Sardar to Fateh Muhammad (vendee/ respondents herein). The suit was decreed by the A. C./Collector on 9‑8‑1977.
2. The vendee/defendant filed an appeal which was partly accepted by the learned Additional Commissioner vide his order dated 26‑11‑1978, whereby be remanded the case for fresh decision to the trial Court, making observations that the right of pre‑emption of the petitioner was confined to the extent of the share of the vendor in the precise fields in occupancy of the petitioner namely 12 marlas of land as against the total area sold, viz. 18 kanals and 9 marlas.
3. The petitioner/pre‑emptor filed a revision but without any success as it was dismissed by the learned Member, Board of Revenue on 27‑1‑1981.
4. The petitioner/pre‑emptor at the stage filed a constitutional petition being W. P. 1281/81 which also met the same fate and was dismissed by the High Court on 1‑6‑1.981. The petitioner has now come up in a petition for special leave to appeal to this Court.
5. The first point raised by the learned counsel for the petitioner was that the appeal of the vendee/defendant was barred by limitation by on day before the learned Additional Commissioner and in this context the High Court and the learned Member, Board of Revenue failed to declare the aforesaid order as to be without lawful authority. The contention has no merit. It is conceded that this point was not raised before the learned Additional Commissioner and in these circumstances we feel that the High Court committed no illegality in not attaching any importance to it in the exercise of its discretionary jurisdiction under Article 199 of the Constitution.
6. It was then argued that the land in dispute was in hissadari qabza of the vendor and that the same comprised in the tenancy of the petitioner. In that view of the matter the, observation of the learned Additional Commissioner, contrary thereto, ought to have been set aside and declared as to be without lawful authority and as being against the relevant record. Reliance for this proposition is placed on Muhammad Muzaffar Khan v. Muhammad Yusuf Khan P L D 1959 S C (Pak.) 9. We do not want to attend to this plea inasmuch as the High Court has already taken its notice in para. 3 of its order which reads as follows: ‑
"The petitioner's objection to the remand order can hardly be entertained in writ jurisdiction by this Court. The case has been remanded to the Collector who is to decide it afresh after affording both the parties an opportunity of being heard. No final order can, therefore be said to have been passed by respondent 2. Therefore, the remand order does not demand any interference. This petition is without any substance and is dismissed in limine.
The above observation and direction of the High Court in our opinion is comprehensive enough to enable the Collector/trial Court to deal with or determine the area of the extent of the sold pre‑emptible area comprised in the tenancy of the petitioner with reference to the sale‑deed, and the other attending and relevant evidence in the light of the law applicable to such cases, which the parties will be at liberty to cite before the Court concerned.
7. In this view of the matter we do not feel that this is a fit case for grant of leave to appeal. The petition is dismissed as above indicated. As it is an old case the learned trial Court is directed to finalize its disposal within three months.
Petition dismissed.
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