' SHAHID WAHEED, J.--- The petitioners, through this Civil Revision Petition under section 115, C.P.C., have called in question the order dated 8-4-2003 passed by the learned Additional District Judge, Mandi Bahauddin whereby their application under section 12(2), C.P.C. For setting aside the decree dated 2-2-1982 was dismissed.
2. Briefly the facts of the case are that the land measuring 46 Kanals, 5 Marlas situated in the area of village Dogal was owned by Ghulam Akbar son of Sardara resident of village Dogal. In respect of this land Mst. Zohra Bibi, predecessor-in-interest of respondent No,3, filed a suit for declaration against Ghulam Akbar which was decreed on 16-3-1971. The decree dated 16-3-1971 was incorporated in the Revenue Record vide Mutation No,504 dated 6-5-1979 in favour of Mst. Zohra.
The father of the present petitioner namely Mirza on 14-3-1977 filed a suit for possession through pre-emption in respect of decree dated 16-3-1971. Walayat Ali (respondent No,1) and Muhammad Ali (respondent No,2) also filed a suit for possession through pre-emption in respect of the above said land claiming their superior right of preemption. The suit filed by respondents Nos.1 and 2 was dismissed on 6-7-1980. Being aggrieved, the respondents Nos.1 and 2 filed an appeal which was accepted and as a consequence thereof the suit was ex parte decreed vide judgment dated 2-2- 1982. Later on, Mst. Zohra filed an application for recalling of ex parte judgment and decree dated 2-2-1982 but it was dismissed as withdrawn vide order dated 4-12-1986. However, the suit filed by the father of the petitioner, Mirza, was contested by Mst. Zohra. In the meantime Ghulam Haidar, real brother of the vendor Akbar, also filed a suit for possession through pre-emption in respect of the suit-land. The suits filed by Mirza and Ghulam Haidar were consolidated. The learned Trial Court vide judgment and decree dated 9-3-1985 decreed the suit filed by Mirza and dismissed the suit filed by Ghulam Haidar. Thereafter the petitioners filed an application under section 12(2), C.P.C. For setting aside the judgment and decree dated 2-2-1982. This petition was contested by respondent through their written reply. On divergent pleadings of the parties, the learned District Judge framed issues and called upon the parties to produce evidence in support of their respective claims. After recording evidence the learned District Judge, Gujrat vide order dated 6-2-1992 dismissed the application filed by the petitioners. Feeling aggrieved, the petitioners filed Civil Revision No,968 of 1992 before this Court. The above said civil revision was accepted by this Court vide order dated 28-10-2002 and the case was remanded to the learned District Judge, Mandi, Bahauddin for re- decision of petitioner's application under section 12(2), C.P.C. On the basis of evidence available on record. Consequent upon remand, the learned District Judge, Mandi Bahauddin, vide order dated 8-4-2003 again dismissed the application filed by the petitioners under section 12(2), C.P.C. Hence, this petition.
3. Learned counsel for the petitioners, in support of instant petition, has submitted that judgment and decree dated 2-2-1982 in favour of respondents Nos.1 and 2 was void as the same was obtained collusively, without impleading the petitioners in the suit and in violation of section 28 of the Punjab Pre-emption Act, 1913. Conversely, learned counsel for the respondents vehemently opposes this petition and submits that the petitioners in their application filed under Section 12(2), C.P.C. Have not disclosed the details of fraud; that non impleading of the petitioners by respondents No, 1 and 2 in their suit was not fatal; and, that non-compliance of the provision of section 28 of the Punjab Pre-emption Act, 1913 does not vitiate the judgment and decree dated 2- 2-1982.
4. 1 have heard the learned counsel for the parties and perused the record.
5. The issue involved in this petition is as to whether the non-impleading of the petitioners in the suit filed by respondents Nos.1 and 2 for possession of the suit-land through pre-emption renders the decree dated 2-2-1982 as nullity in terms of section 28 of the Punjab Preemption Act, 1913. It is settled principle of law that suit filed by the preemptor without impleading the rival pre-emptor in his suit in violation of A section 28 of the Punjab Pre-emption Act, 1913 shall not be thrown out as being collusive or not maintainable. The same is the rationale of the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of Zahoor Alain and others v. Fazal. Hussain and others (1991 SCMR 763) and relevant extract thereof reads as under:--- "It has been held in Mahmood Khan v. Khan Muhammad PLD 1973 Lahore 806 that "there is no gainsaying the fact that Muhammad Asif's decree having been obtained in disregard of the provisions of section 28 of the Punjab Pre-emption Act, is not binding on Mahmood Khan, but as has been rightly pointed out by counsel for the respondents, with reference to Ghulam Tayyib v.
Shahro Khan PLD 1962 BJ 1 such decree is not a nullity and Mahmood Khan shall have to prove his superior right as against the vendees and Muhammad Asif, in his own suit, in which Muhammad Asif has been impleaded as a party". In the case of Ghulam Tayyib, it was further observed that "the effect of the imperative provisions of section 28, Punjab Pre-emption Act is that if one of the suits is decided in the absence of the plaintiff in the other suit, the decision cannot be binding on that plaintiff."
' In Muhammad Akram Khan v. Kaniz Fatima PLD 1952 Lahore 489; it was held that "two pre-emption suits instituted one after the other without each impleading his rival pre-emptor as a party in the suit, one of them got a consent decree in his favour while the suit of the other was pending as against the other pre-emptot whose suit was pending and the latter, in the circumstances, was entitled to a decree for the whole of the property sought to be pre-empted."
' In view of principle laid down by the Hon'ble Supreme Court of Pakistan in the above referred judgments I am not inclined to interfere with the order passed by the learned District Judge, Mandi Bahauddin.
6. In view of above, this petition lacks merit and is accordingly dismissed with no order as to cost.