' Land measuring 14 Kanals 19 Marlas comprised in field No. 881/ 9-0, 886/5 Kanals, 909/0-19 Marlas, Khewat No. 232, Khautuni No. 349 entered in record of rights 1970-71 situated in Pir Chak, was alienated by Muhammad Zakaullah son of Shahna for an ostensible sale price of Rs. 13,000 vide registered sale-deed, dated 16-3-1972. Mutation No. 251 was entered and sanctioned on 11-9-1972 to give effect to the sale-deed, dated 16-3-1972. Noor Muhammad, Pir Muhammad sons of Hayat Muhammad instituted a civil suit, to pre-empt the sale made by Zakaullah on the ground of being tenants, co-sharers and owners in Patti. Suit was instituted in the civil Court at Gujranwala. While the suit was pending against Allah Lok, vendee, Muhammad Sultan, Muhammad Yunas sons of Nazir Ahmad, Muhammad Hamid All son of Zakaullah vendor, instituted a civil suit against Allah Lok vendee, Muhammad Zakaullah vendor, Nazir Ahmad son of Ishaq for declaration that they were owners in possession of the land comprised in Khasra Nos. 1340, 1341, 1342, 881, 909, 535, 1343, 1344, 1345, 1346, 1368, 1369, 1372, 1373 and 1374, measuring in all 98 Kanals 8 Marlas and the sale made by Zakaullah vendor in favour of Allah Lok vendee was null and void qua their rights of ownership and possession in respect of the land described above. This civil suit was conceded by the impleaded defendants and on the basis of the concession made, the suit was decreed on 5-9-1974 by learned Civil Judge First Class, Gujranwala. On the basis of the aforesaid compromise decree, Mutation No. 353, was entered and .sanctioned in accordance with the terms of the decree annulling earlier Mutation No. 251, dated 11-9-1972 attested on the basis of a registered sale-deed. Muhammad Sultan and others then applied to be made party defendants in the suit for pre-emption, pending in the civil Court. Vide order dated 28-5-1975, learned Civil Judge, Gujranwala, permitted them to be impleaded as party. Necessary amendment was accordingly made in the plaint. Written statements were filed by the newly-added defendants. Defendant No. 1, absented and ex parte proceedings were ordered against him. Learned Administrative Civil Judge, Gujranwala, in the light of the pleadings of the parties, raised following issues on merits:-
(1) Whether the suit has been correctly valued for purposes of court-fee and jurisdiction, if not what is the correct valuation for the said purpose?
(2) Whether the suit is maintainable in its present form?
(3) Whether the plaintiffs have got cause of action?
(4) What is the effect of decree dated 5-9-1974 passed by Civil Judge Gujranwala on the present suit?
(5) Whether the plaintiffs have got superior right of pre-emption than the defendant-vendees?
(6) Whether the sum of Rs.13,000 was fixed in good faith and actually paid as the sale price of the land in dispute?
(7) If issue No. 6 is not proved then what was the value of the property at the time of sale?
(8) Relief?
' Parties were given opportunity to lead evidence. On 8-1-1976, pre-emptors concluded their evidence and the suit then was adjourned for defence evidence. Defendants' evidence was accordingly recorded on 12-4-1976 and the suit postponed for plaintiff's/pre-emptor's evidence in rebuttal. On 6-10-1976, learned Senior Civil Judge, Gujranwala, in view of the amendment in para. 25 of the Land Reforms Regulation 115 of 1972, conferring exclusive jurisdiction on Collector in respect of suits brought by tenants, sent the file to Collector, Gujranwala. Vide order dated 17-5- 1982, learned Assistant Commissioner/Collector, found against the pre-emptors and dismissed the suit. Against the judgment dismissing the suit, an appeal was filed by Noor Ahmad and Pir Muhammad in the Court of Additional Commissioner, Gujranwala. Vide judgment dated 7-7-1983, appeal succeeded, order dated 17-5-1982 set aside and the suit for pre-emption was decreed on the condition of payment of Rs.13,000. In regard to the civil Court decree passed in a declaratory suit, Additional Commissioner relying on decision reported in PLD 1982 Lah. 426 observed that it did not bar the exercise of a pre-emptive right. Muhammad Sultan and others who had a civil Court's decree in their favour preferred a revision petition before Member Board of Revenue Punjab, Lahore. Revision, vide order dated 12-9-1984, was found to be without merit and dismissed. In this background, constitu tional jurisdiction, has been invoked at the instance of Muhammad Sultan and others.
2. Mr. Muhammad Arif, Advocate, learned counsel for the petitioners has been heard. None appeared on behalf of respondents despite service and call. They are accordingly ordered to be proceeded against ex parte. Learned counsel for the petitioners contended that decision in Falak Sher v. Muhammad Rashid and another PLD 1982 Lah. 426 had no application to the facts of the case under consideration and the Courts have wrongly placed reliance on the aforesaid precedent case for defeating the claims of the writ petitioners. Decree, passed by a civil Court in exercise of jurisdiction vested in it by law in a suit properly instituted between two parties, could not have been ignored by the functionaries under Land Reforms Regulation 115 of 1972. Decree passed by a Court of general jurisdiction which the civil Court undoubtedly possessed was a binding force and its legal effects could not have been bypassed by Additional Commissioner and Member Board of Revenue invested with special limited jurisdiction under para. 25 of the aforesaid Regulation.
Precise submission raised was that the sale had been set aside and nothing remained for the pre- emptors to pre-empt. Collector, accordingly, taking proper notice of the civil Court's decree rightly non-suited the pre-emptors. Learned Additional Commissioner illegally assumed jurisdiction to set aside the decree of a civil Court. Pre-emptors despite knowledge of the decree did not move to appeal nor did they move any application under section 12(2) of the Code of Civil Procedure. If they felt dissatisfied, they were bound under law to take appropriate steps to get the decree set aside in appropriate proceedings. Having not done so, they will be deemed to have accepted results flowing therefrom. In brief, counsel, vehemently asserted, that the Collector, Commissioner and the Member Board of Revenue though by a deeming provision of law in sub-para. (8) of para. 25, have been given powers of a civil Court for purposes of the trial of the suit, appeal and revision, yet their powers cannot be equivated with civil Courts functioning under general law of the land. Decision given by the civil Courts, accordingly was binding on the authorities functioning under this special legislation. Learned counsel also distinguished the case of Falak Sher relied on by the learned Additional Commissioner and Member Board of Revenue.
3. Copy of record of rights, 1970-71 shows, land in dispute to be jointly owned by Muhammad Zakaullah, Nazir Ahmad, Muhammad Hamid Ali, Muhammad Sultan, Muhammad Younas in various shares. Column No. 4 of the record of rights, shows that Zakaullah was in possession of the suit land as co-sharer. Noor Muhammad, Pir Muhammad were recorded as non-occupancy tenants holding under Muhammad Zakaullah co-sharer. Copy of the registered sale-deed dated 26-3-1972, shows that sale was made from Khana-Kasht. This fact is supported by the relevant entries made in Mutations Nos. 251 and 353. In the civil suit filed by Muhammad Sultan and others during the pendency of the re-emption suit, fields Nos. 881 and 909 alongwith several others were mentioned.
However 886 was not included. It was not denied by the learned counsel that Muhammad Zakaullah owned some share in the jointly owned land. It was further not denied that he was in possession as co-sharer which fact otherwise was supported. by the entry in the revenue records.
Civil suit for declaration was decreed on the basis of a concessional written statement. Obviously, it was as a result of the compromise between the parties to the suit. Significantly, the pre-emptors were not impleaded. Decree dated 5-9-1974 reads:-[URDU TEXT] ' On the basis of this decree Mutation No. 353 was entered and the land in dispute reverted to its position existing prior to the sale made by Zakaullah in favour of Allah Lok. Obviously, the decision was not given on merits after contest. Compromise decree is nothing but an agreement between the parties to which the seal of the Court had been superadded. Learned counsel however, is right in saying that the ratio in Falak Sher v. Muhammad Rashid and others PLD 1982 Lah. 426 found in para. 4 of the report, did not apply. It will be of some advantage to quote the relevant paragraph 4:- "In some of the precedent cases it has been ruled that where after the filing of a pre-emption suit the vendees resells the land involved in the suit in favour of the vendor, it does not defeat the right of pre-emption claimed in the suit. Some of these cases have been reported as Muzafar Khan v.
Muhammad Khan etc. 38 P L R 224, Imami v. Allah Dita and others 40 I.C. 767, Sukha and others v.
Aroora Mal and another P L R 1908, 165, Pal Singh and another v. Jamun 49 I.C. 159 and Muhammad Khan and another v. Zir Mir Khan and 2 others 1981 CLC 129. Collusion between the vendor and the vendee in the instant case which had resulted in the declaratory decree in question, was also aimed at giving back the disputed land to the vendor with a view to defeating the pre-emption suit brought by the respondent. That decree is, therefore, on no better footing than the re-sale of land by vendee in favour of the vendor. The disputed decree would, therefore, not adversely affect the suit for pre-emption."
' Facts here are different. Muhammad Zakaullah co-sharer in possession, had sold land measuring 14 Kanals 19 Marlas from Khana Kasht. This he was competent to do as held in Muhammad Muzaffar Khan v. Muhammad Yusaf Khan PLD 1959 S.C. (Pak.)
9. Their Lordships of the Supreme Court in the above-noted report observed:- "The vendee of co-sharer who owned an undivided Khata in common with another, is clothed with the same rights as the vendor has in the property no more and no less. If the vendor was in exclusive possession of a certain portion of the joint land and transfers its possession to his vendee, so long as there is no partition between the co-sharers, the vendee must be regarded as stepping into the shoes of his transferor qua his ownership rights in the joint property, to the extent of the area purchased by him, provided that the area in question does not exceed the share which the transferor owns in the whole property. Alienation of specific plots transferred to the vendee would only entitle the latter to retain possession of them till such time as an actual partition by metes and bounds takes place between the co-sharers. It is difficult to see in these circumstances why the vendee of specific plots acquired from a co-owner, in an undivided Khata, does not become a co- sharer in that Khata."
'The right of pre-emption is a right to be substituted for the vendee in respect of the sale made in the latter's favour. In the civil suit, certain persons who were recorded in joint ownership of the land, were claiming declaration of their rights. Any result arrived at in the civil suit seriously affected the pre-emptors' right to be substituted A for the vendee. Any decree, whether on contest or on compromise, passed in the absence of the pre-emptors could well be examined qua its legal effects by the Collector in his special jurisdiction. It was in this view of the matter that an issue had been framed by the learned Administrative Civil Judge. Parties also produced evidence. Prior to the enforcement of Act XLVIII of 1976 all suits for possession in exercise of pre-emptive right including those based on tenancy were entertained' heard and adjudicated upon by the civil Court. With the change in law brought about by Act XLVIII of 1976, jurisdiction to entertain, hear and decide suits for pre-emption filed by tenants in respect of the sale of land comprised in their tenancy, was conferred on the Collector. In consequence of the amendment, this suit was also transferred to the file of the learned Collector. Decision of the Collector was made appealable to the Commissioner and a further revision was provided before the Board of Revenue. In terms of sub-para. (8) of para. 25 of the Regulation, Collector, Commissioner and the Board of Revenue by the deeming provision of law, were made a civil Court possessed of all the powers of a civil Court under any law for the time being in force. In this, the Rules of procedure contained in the Code of Civil Procedure, became applicable to the Court of Collector, Commissioner and Member Board of Revenue deciding civil suit, appeal and revision. In the case under consideration, learned Administrative Civil Judge framed necessary issues. Collector while making a final decision, ignored the mandatory provisions of rules 4 and 5 of Order XX of the Code of Civil Procedure. Rules 4 and 5 read as under:-
4. "Judgments of Small Cause Courts.-- (1) Judgments of a Court of Small Causes need not contain more than the points for determination and the decision thereon.
Judgments of other Courts.-- (2) Judgment of other Courts shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision.
5. Court to state its decision on each issue.-- In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit."
'Learned Collector was bound to follow these mandatory provisions of law. A cursory look at the judgment would show that the aforesaid provisions of law have not been complied with. When issues had been framed, the Court was bound to record its findings on each and every B issue raised unless the finding on one of the issues obviated the necessity of giving findings on the remaining issues. Similar was the mistake committed by the Additional Commissioner in appeal.
Rule 31 of Order XLI contains requirement of a judgment passed in appeal. It reads:-
31. "Contents, date and signature of judgment.- The judgment of the Appellate Court shall be in writing and shall state--
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled; and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein."
' Sub-para. (7) confers powers of revision on the Board of Revenue. In terms of this sub-para. Revisional Court is to satisfy itself as to the correctness, legality or propriety of the proceedings or orders made by the authorities subordinate to it. In this process, the Board is obligated to examine the contentions raised before it in the light of the material available like a civil Court. Strangely, this requirement of law has not been met. This all important omission has resulted in escaping the real controversy from the views of all the Courts. Pre-emption suit, in the result, has not been adjudicated upon in accordance with law. Writ petition is allowed, impugned orders passed by the Courts below are set aside and declared to have been made without lawful authority.' Necessary corollary of this declaration is that the suit is remitted to Assistant Commissioner/Collector, Gujranwala, for its decision afresh in the light of observations made in this judgment on the basis of the material already available on the record. Learned Collector may also afford further opportunity to the parties to produce additional evidence, if so desired by them. Since respondents have not appeared, no order as to costs is being made. Records be sent to the Collector for further proceedings in the case. Petitioners are directed to appear before the trial Court on 16-3-1985.
Collector will issue fresh notice to the remaining parties including Noor Muhammad and Pir Muhammad, pre-emptors.