1. NASIM HASAN SHAH, J.-- The appellants purchased the agricultural land measuring 359 Kanals and 18 Marlas (equivalent nearly to 45 acres of land ) bearing Khasra Nos. 108, 127, 289, 290, 301, 302, 304, 309, 313, 318, 351, 298, 323, 329, 331, 336, 333, 310, 312,300, 292, 311, 330, 337, 340, 308, 316, 335, 315, 323, 324, 325, 326, 343, 344, 108, 291, 295, 296, 305, 327, 317, 319, 320, 322, 293, 294, 297 and 299, Khewat No.38/38, Khatuni Nos. 127 to 131 to 138 and 140 according to Register Haqdaran Zamin for the year 1970-71 situated in village Nehr Chandwala, Tehsil Chunian, District Kasur on 21-5-1974.
2. At the the of the sale, the land was in the cultivating possession of about 15 tenants, although the aforesaid tenants had voluntarily relinquished immediate vacant possession of 5) acres of the land in favour of the appellants and had also allegedly surrendered the vacant possession of the remaining land in their favour in Rabi 1975 nevertheless respondents 4 to 7 brought a suit against the appellants in the civil Court on 8-5-1975 for possession of the land through pre-emption. While Respondent No.4 claimed a superior title to acquire the land on the basis of his ownership in the village, respondents 5 to 7 who claimed to be co-sharers having tenancy rights in about 30 acres of the land based their claim both as tenants over a part of the land in dispute as also as the owners in the village in preference to the appellants on account of the provisions of clause (d) of sub-para. (3) of para. 25 of the land Reforms Regulation, 1972 (MLR 115) which lays down that-- "subject to the other provisions of this Regulation, a tenant shall have the first right of pre-emption in respect of the land comprised in tenancy."
3. As noted already, respondents 5 to 7 asserted that they were co-sharers in about 30 acres of land out of 45 acres of the land which was purchased by the appellants.
4. The suit filed by the respondents 4 to 7 was transferred to the Collector for decision in view of the amendment made in paragraph 25 of the Land Reforms Regulation, 1972, whereby a new sub- para. Namely, sub-para. (5) was added to paragraph 25 of the Land Reforms Regulation, 1972 by section 6 of the Land Reforms (Amendment) Act, 1976, which reads as under:- "(5) All suits for enforcing the right of pre-emption in respect of land comprised in a tenancy shall be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land in respect of which the right of pre-emption has been claimed is situated and all such suits which may be pending in any Court immediately before the commencement of the Land Reforms (Amendment) Ordinance, 1976, shall, on such commence--ment, stand transferred to the Collector concerned."
5. The Collector, thereupon, tried the suit and by his order passed on 18-6-1977 decreed it except for 5) acres of the land which had admittedly been surrendered by the tenants in favour of the appellants on 9th July, 1974. The appellants challenged the decree of the Collector by an appeal before the Additional Commissioner, but without success. Their revision against the said order was also dismissed by the Board of Revenue on 1-12-1977. They then challenged the validity of these decisions in Writ Petition No.4150 of 1977, which, to, was dismissed in limine by a learned Single Judge of the Lahore High Court on 5-6-1978. Hence this appeal, by leave of this Court.
6. We have heard the learned counsel for the parties and have reached the conclusion that this appeal must succeed.
7. It will be noted that Respondent No.4 had claimed his preferential right of pre-emption solely on the basis of his alleged ownership in the village and consequently the transfer of his suit for possession of the land by pre-emption from the civil Court to the Court of the Collector was ultra vires by sub-para. (5) of paragraph 25 of the Land Reforms Regulation, 1972, which was added by section 6 of the Punjab Act 48 of 1976. Thus, the decree passed by Collector in his favour was ab initio, without jurisdiction and lawful authority.
8. We further note that respondents 5 to 7 were co-sharers only in about 30 acres of land sought to be pre-empted and at best the decree in their favour could be passed only to the extent of the land in their tenancy and not in respect of the remaining area which was in the cultivating possession of the other tenants, as envisaged in para. 25(3)(d) of the Land Reforms Regulation, 1972. Consequently, the decree for possession of the land which was not in their occupation but was in the cultivating possession of the other tenants was against the law and the decree as passed is unsustainable.
9. It appears to us that it was the duty of the Collector to ascertain the exact area which comprised the tenancy of respondents 5 to 7 and determine whether they could avail of the benefit of section 25(3)(d) of the Land Reforms Regulation of 1972 and if so, to decree the suit that extent. Thereafter, the suit had to be returned to the civil Court for adjudicating to right, if any of respondent No.4, which was no based on section 25(3)(d).
10. We would, therefore, set aside the order of the Collector, dated 18-6-1976 decreeing the suit as also the order of the Additional Commis--sioner, dated 10-11-1977 -and that of the Member, Board of Revenue, dated 1-12-1977 upholding the said orders along with the order of the learned Single Judge of the Lahore High Court, dated 5-6-1978 refusing to interfere with these orders in writ jurisdiction.
11. The result will be that the suit shall be deemed to be pending before the Court of the Collector who will proceed to dispose it in accordance with the law, in the light of the observations made above.
12. The appeal is, therefore, allowed with costs.