' This revision petition is directed against the judgment and decree, dated 21-6-1983 of the District Judge, D.I. Khan, whereby the appeal of defendant-respondent No. 1 against the judgment and decree, dated 12-2-1983 of the Civil Judge, D.I. Khan, passed in favour of plaintiff (petitioner herein) was accepted.
2. The facts of the case are as follows:- 1/12 share out of Khata No. 173 and Khata No. 174 was the ownership of Mst. Babu Jana, who had sold it by Mutation No. 308, attested on 20-5-1975, in favour of Fazal Rehman, (respondent No. 2 herein). The sale was pre-empted by Shadi Khan (petitioner herein) and Muhammad Behram (respondent No. 1 herein who died during the pendency of this revision petition and his legal heirs were brought on record, one of whom is Fazal Rehman, the original vendee), through two separate suits. Shadi Khan had instituted his suit on 19-5-1976 and Muhammad Behram had filed his suit on 20-5-1976. Shadi Khan based his claim on participation in the immunities and appendages of the suit land and contiguity thereto. He also claimed having superior right of pre-emption on the basis of tenancy. Muhammad Behram claimed superior right on the basis of co-shareship and other qualifications mentioned in the Pre-emption Act. While the suit of Shadi Khan was pending in the civil Court, Muhammad Behram pre-emptor obtained on 24-6-1976 a consent decree for possession of the suit land by pre-emption on payment of Rs.3,000. The pre-emption money was also stated before the Court to have been received by the vendee-defendant. Since Shadi Khan had claimed superior right of pre-emption also on the basis of tenancy, his suit was transferred to the Collector for adjudication in respect of that claim. While the suit was pending before the Collector for such adjudication, Muhammad Behram (rival pre-emptor), who had already obtained on 24-6-1976 a decree for possession by pre-emption from the civil Court, applied to the Collector, for making him party to the suit of Shadi Khan. After contest, his application was allowed by the Collector on 19-4-1978 (order in the order sheet) and he was added as defendant in that suit. Shadi Khan pre-emptor failed in proving his right before the Collector, and the order made by the Collector was not challenged by him before the higher forums, with the result that it became final.
Since Shadi Khan had also claimed his superior right on other grounds, which could only be adjudicated upon by the civil Court, his suit, after the Collector made the aforesaid decision, was transferred to the Court of Senior Civil Judge for adjudication, wherefrom it was sent to the Court of Civil Judge for trial. Before the learned trial Judge, the suit was contested by rival pre-emptor Muhammad Behram and the pleadings of the parties were reduced to the following issues:-
(1) Whether the plaintiff has got any cause of action?
(2) Whether the plaintiff has got superior right of pre-emption?
(3) Whether the suit is bad for partial pre-emption?
(4) Whether Muhammad Behram defendant is a necessary party to the suit being purchaser of the suit land?
(5) Whether the suit is properly valued for the purpose of court-fee and jurisdiction?
(6) Whether a sum of Rs.3,000 is fixed in good faith or actually paid?
(7) What is the market value?
(8) Relief.
' After allowing the parties to produce such evidence as they wished to produce, the learned trial Judge, after elaborate discussion and holding that transfer by way of consent decree in favour of rival pre-emptor Muhammad Behram being ineffective against the rights of Shadi Khan pre- emptor, found the latter having superior right on the basis of contiguity in respect of some of the Khasra numbers in suit. Issue No. 1 was also answered in favour of the pre-emptor and so was issue No.
3. On issue No. 4, the finding of the learned trial Judge was that Muhammad Behram (rival pre- emptor) was not a necessary party to the suit because he had entered into litigation as a result of collusion with his son Fazal Rehman, the original vendee, whose interest he wanted to protect.
Issues Nos. 6 and 7 were discussed together by the learned trial Judge who held that payment of Rs. 3,000 as sale consideration was not proved and that the market value of the suit land was Rs.
2,096.10 paisas. Issue No. 5 was answered by the learned trial Judge "in the light of issues Nos. 6 and 7." As a result, the learned trial Judge granted to Shadi Khan pre-emptor a decree for possession by pre-emption of those Khasra numbers with which the land of Shadi Khan was found contiguous. With respect to remaining Khasra numbers, his suit was dismissed. The learned trial Judge totally ignored the consent decree passed in favour of Muhammad Behram in respect of the suit land.
3. Muhammad Behram (rival pre-emtpor) was not satisfied with the judgment and decree of the learned trial Judge. He, therefore, took out appeal to the Court of the learned District Judge, who, while accepting the same, by his judgment and decree, dated 21-6-1983, set aside the decree passed in favour of Shadi Khan pre-emptor and passed a decree in favour of Muhammad Behram (appellant-pre-emptor) on payment of Rs. 2,096.10 paisas. In respect of pre-emption money, the verdict of the learned District Judge was that since according to the consent decree the original vendee had acknowledged to have received the pre-emption money, Muhammad Behram was, therefore, not to deposit the same in Court. In view of the peculiar circumstances of the case, the parties were directed to bear their own costs. It is the judgment and decree of the learned District Judge which has aggrieved Shadi Khan pre-emptor, who has come to this Court in revision.
4. Mr. Hamidullah Khan Mian Khel, Advocate appeared on behalf of the petitioner. Mr. Mazhar Alam Khan Mian Khel, Advocate, who was engaged by the respondent, was, however, absent being busy in election. Fazal Rehman respondent was present in Court. They were heard and the record perused.
5. Learned counsel for the petitioner could not dispute the fact that Muhammad Behram, rival pre- emptor, was a co-sharer in both the suit Khatas, as it stood established from the evidence brought on record, specially from the copies of the revenue record and the statement of Patwari Halqa. He also frankly conceded that the suit for pre-emption having been lodged by Muhammad Behram on 20-5-1976, as apparent from the copy Exh. D.W. 1/1, was within time. The only objection raised by the learned counsel for the petitioner in this regard was that since Muhammad Behram (rival pre- emptor) had obtained decree for possession by pre-emption from the Court by way of collusion with the original vendee and without impleading Shadi Khan (petitioner herein) as defendant in that suit, that decree was, therefore, non-existent in the eye of law and could not defeat the rival pre-emptor's suit, which was that of petitioner herein. Even if this argument of the learned counsel for the petitioner was to be allowed, it would have the effect of the restoration of Muhammad Behram's suit to its original number, which would, as a pending matter, require adjudication upon merits vis-a-vis the claim of Shadi Khan, rival pre-emptor. This appears to have been done by the learned lower Appellate Court, though not in express terms. Considering the respective rights of rival pre-emptors, the learned lower Appellate Court came to the conclusion that Muhammad Behram pre-emptor being a co-sharer had a superior right to that o Shadi Khan, rival pre-emptor, who had succeeded at the trial to establish his contiguity in respect of some of the Khasra number in suit. The judgment of the learned lower Appellate Court had the support of th revenue record and the other evidence brought on file; collusion between Muhammad Behram and Fazal Rehman having' not been proved.
6. While this revision petition was pending agd when the only adjudication in the field was the judgment of the learned lower Appellate Court in favour of Muhammad Behram, an incident of significance took place and that is that Muhammad Behram died' leaving behind a few successors, one of whom was Fazal Rehman, the original vendee. Fazal Rehman, therefore, stepped into the shoes of Muhammad Behram and became a co-sharer in both the suit Khatas, and having thus acquired such rights, which fell out of the purview of section 17(2) of the Pre-emption Act, he could also, in his own right, defeat the claim of Shadi Khan pre-emptor, had the learned lower Appellate Judge remanded the case, or if I now remand it, to the learned trial Judge for consolida tion of the two suits and re-adjudication.
7. For the aforesaid reasons, this revision petition is without merit, and is hereby dismissed. I shall, however, make no orders as to costs.