' This revision is directed against the judgment and decree dated 4-5-1977 passed by the learned District Judge, Gujrat.
2. The facts necessary for the purposes of this revision, briefly stated, are that Mian Khan petitioner instituted a suit against the respondents-defendants Fateh All and others in the Court of the Civil Judge, Gujrat for possession of land measuring 40 Kanals 8 Marlas situate in village Jhandiwala, Tehsil and District Gujrat through pre-emption of sale of the said land by Bahawal Bakhsh in favour of Fateh Ali, mutation of which sale bearing No, 3762 was sanctioned on 26-2-1973.
' Respondents-defendants Nos. 2, 3 and 4 are the subsequent vendees from Fateh Ali, respondent- defendant No,1 and were, therefore, impleaded as defendants. The superior right of pre-emption was claimed by the plaintiff as against the defendants on the basis of his being an owner in the village as also being a tenant on the land in dispute.
' The suit was resisted by the defendants and it was, inter alia, asserted that the land was sold by Bahawal Bakhsh to Fateh Ali for a sum of Rs, 20,000 in pursuance of the decree of the Civil Court passed on 7-7-1969 and that Fateh All had in turn sold the land to defendants Nos. 2, 3 and 4 on payment of Rs, 30,000 in recognition of their superior right of pre-emption.
' On the pleadings of the parties five issues were framed by the learned trial Court which read as under:-
(1) Whether the plaintiffs have superior right of pre-emption qua the defendant/vendee? O.P.P.
(2) Whether the sale price of Rs, 20,000 was actually paid or the same was fixed in good faith?
O.P.D.
(3) If issue No,2 not proved then what was the market value of the suit land at the time of sale?
(4) Whether the plaintiff has no cause of action? O.P.D.
(5) Relief.
' The learned trial Court (Civil Judge First Class Gujrat) by its judgment and decree dated 1-11-1975 dismissed the suit of the petitioner-plaintiff with costs.
' Feeling dissatisfied the petitioner preferred an appeal to the learned District Judge, Gujrat who concurred with the findings of the trial Court and 'dismissed the appeal by his judgment and decree dated 4-5-1977. Hence the present revisial.
3. The learned counsel for the petitioner raised the following two contentions only: ' First, that the learned District Judge was not competent to decide the controversy in appeal as by virtue of section 6(5) of the Land Reforms (Amendment) Act, 1976 (Act XLVIII of 1976) sub-para. (5) was added to para. 25 of the Land Reforms Regulation, 1972 which provided that all suits for enforcing the right of pre-emption in respect of land comprised in a tenancy pending in any Court immediately before the commencement of the Land Reforms (Amendment) Ordinance, 1976 shall on such commencement stand transferred to the Collector concerned.
' The above argument was based on the further contention that the appeal being a continuation of the suit should have been treated as 'suit' by the District Judge and should have been sent to the Collector; ' Secondly, that the findings recorded in para. 10 of the judgment of the learned District Judge are erroneous in that the cause of action having arisen to the petitioner on 26-2-1973 on the entering of the mutation in dispute the limitation could commence only from 26-2-1973 and, therefore, the right of pre-emption of the petitioner was to be considered w.e.f, that date. Reliance was placed in this regard on Jagdish Rai and another v. Suraj Kumar Singh and others AIR 1939 All.
113.
4. On the other hand, the learned counsel for the respondents submitted that amendment brought about by Act XLVIII of 1976 was only intended for suits which were pending before the Civil Courts at the time of commencement of the Amending Ordinance viz. 19-5-1976 and the suit out of which the appeal was pending before the learned District Judge having been decided on 1-11-1975 the amendment had no relevance to the controversy in hand. He argued that the appeal cannot be taken as continuation of the suit in the context of the present circumstances.
' The learned counsel for the respondents next submitted that it was the petitioner himself who had instituted the suit and he having got the decision on merits from the learned District Judge is precluded from saying now that the learned District Judge did not possess the jurisdiction.
Reference was made in support of this contention to Nazar Hussain v. Faqir Muhammad 1974 SCMR 188.
' Lastly, the learned counsel for the respondents submitted that the findings of the lower appellate Court as recorded in para. 10 of the impugned judgment are perfectly valid and based on sound settled principle of law that a pre-emptor has to show his right of pre-emption not only at the time of filing the suit but at all the three stages this right has to be established viz. At the time of sale, at the time of institution of the suit and at the time of the decree. He urged that it is the established position vide Exh. D.6 and Exh. D.7 the Khasra Girdawaris that the petitioner became a tenant on a portion of the land in dispute only w.e.f 1971 and the sale having been effected in 1969 by a decree of the Court he was not a tenant at the time of sale. Continuing his argument he submitted that the entry of mutation only extends the time of limitation if it has been entered on a date subsequent to the date of sale but it does not take away the effect of the basic principles for pre-empting the sale.
5. In reply, the learned counsel for the petitioner only submitted that the facts of the case in hand are different from the facts of the cited case 1974 SCMR 188 in that the appellate jurisdiction of the learned District Judge had been invoked by the petitioner before the amendment by Land Reforms (Amendment) Act, 1976 was brought about.
6. Having given consideration to the controversy involved I am of the view that the contentions raised on behalf of the petitioner have no force.
7. So far as the First contention is concerned, I suffice by observing that it was not a suit pending before the learned District Judge at the time the Land Reforms (Amendment) Act, 1976 was promulgated but an appeal which in the context of the attendant circumstances could not be said to be a suit.
The clear intention of the Legislature in adding sub-para. (5) to para. 25 of the Land Reforms Regulation, 1972 through section 6(5) of the Land Reforms (Amendment) Act, 1976 is that original trials of suits of pre-emption pending before any Court and based on the superior right of pre- emption of tenancy stood transferred to the Collector who was simultaneously conferred with the jurisdiction to try suits as a Court of original jurisdiction for trial of such suits. The above view finds support from the fact that appeals against the orders of the Collector passed under sub-para. (5) ibid have to be preferred to the Commissioner under sub-para. (6) also added by the same amendment and it was not provided in this sub-para. (6) that the pending appeals would also stand transferred to the Commissioner if the right of pre-emption in the suits decided by the Civil Court out of which appeals had arisen was based on tenancy. It otherwise also cannot be conceived that Legislature would have directed hearing of pending appeals against judgments and decrees of Civil Courts by a different hierarchy.
8. Before parting with this aspect of the case, I may also observe that on the principle enunciated in the case cited as 1974 SCMR 188 the petitioner would otherwise be precluded from objecting to the jurisdiction of the District Judge for hearing and deciding the appeal, especially when this plea was admittedly not raised before the learned District Judge.
9. Adverting now to the second contention of the learned counsel for the petitioner, it may be observed that this is also devoid of force. There ought not to be any cajole with the well-settled principle that a pre-emptor in order to succeed in a suit for pre-emption has to establish that he had the right of pre-emption at the time of sale, at the time of institution of the suit, and at the time of the passing of the decree. If he is unable to establish his right at any of these stages he must fail in the suit. There is no denial to the assertion of the respondents that the petitioner was not a tenant on the land in dispute at the time of sale which was effected on the basis of the decree of the Court in 1969, he having become a tenant in 1971 as established by the respondents/defendants by production of Khasra Girdawaris of the land in dispute. Today, before me also, this position has not been controverted. That being so, the mutation which is only a recording of an entry of sale in the Revenue Department would not make the date of entry of mutation as the date of sale. It may well be that the limitation in filing the suit may be claimed by a plaintiff to start from the date of entry of mutation but then it would not change the date of sale.
The petitioner-plaintiff has admittedly not been non-suited on account of limitation having been taken into consideration from the date of sale of the land in dispute but his right of pre-emption has been held to be not existing on the date the sale was actually effected.
10. It may also be pertinently observed at this stage that the right of pre-emption on the basis of tenancy had been conferred by virtue of pare 25(3)(d) of Martial Law Regulation No, 115 promulgated on 11-3-1972 and it has been held that this paragraph is not retrospective in effect and as such right of pre-emption cannot be claimed in respect of sale that took place before Kharif 1972. Reference may usefully be made in this regard to Faqir Muhammad and others v. Juma Khan and others 1974 Law Notes 292.
11. In view of the foregoing discussion, this revision is dismissed with costs.