This order shall also dispose of the connected Writ Petition No.987 of 1985 as both the petitions involve identical questions of law and fact and are directed against the same order of the learned Member, Board of Revenue.
2. Facts necessary for the disposal of this petition are that the respondents purchased 447 Kanals 2 Marlas i.e. 2/3rd share out of Khata No.90 of village Wallarai, Tehsil Chiniot, District Jhang vide Mutation No.115, dated 27-3-1973 for a sum of Rs.2,00,000. This sale is the subject-matter of the present petition. Respondents also purchased the remaining 1/3rd share measuring 223 Kanals 11 Marlas out of said Khata through a registered sale-deed dated 14-12-1973 for a total consideration of Rs. l 06,186.25. The second sale is the subject-matter of Writ Petition No-987 of 1985.
3. Petitioners claiming to be the tenants of the aforementioned land brought two suits viz. 40/A.C.
(in respect of land measuring 447 Kanals 2 Marlas) and Suit No.132/A.C. (in respect of land measuring 223 Kanals 11 1Marlas). Both the suits were contested by the respondents and necessary issues arising from the pleading of the parties were framed. In Suit No.40/A.C. Following issues were framed;---
(1) Whether the plaintiffs have superior right of pre-emption as against the vendees-defendants?
O. P. P.
(2) Whether the plaintiffs are stopped by their conduct from this suit? O.P.D.
(3) Whether the plaintiffs have waived their right of pre-emption? O. P. D.
(4) Whether Rs.2,00,000 was the price of suit land fixed in good faith or was actually paid? O . P. D .
(5) If issue No.4 is not proved, what was the market value of suit land at the time of its sale? O.P.
Parties.
(6) Whether this Court has no jurisdiction to try the suit? O.P.D.
(7) Whether the suit is bad for misjoinder of causes of action? O.P.D.
(8) Relief.
Issues framed in the second Suit No.132/A.C. Are as follows:-
(1) Whether the plaintiffs have superior right of pre-emption as against the vendee-defendants?
O.P.P.
(2) Whether Rs.1,06,186.25 was the price of suit land fixed in good faith or was actually paid? O.P.D.
(3) If issue No.2 is not proved what was the market value of the suit land at the time of its sale? O.P.
(4) Whether the suit is bad for misjoinder of defendant No.64 as party to it? O.P.D.
(5) Whether the suit is for partial pre-emption?
(6) Whether the defendants have improved the suit land? If so, at what cost and with what effect?
O.P.D.
(7) Whether the plaintiffs have effected unauthorised amendments in the plaint? If so, with what effect? O. P. D .
(8) Whether the suit has not been correctly valued for the purposes of court-fee and jurisdiction? If so, what is its correct valuation? O.P. Parties.
(9) Relief.
4. Suits were initially filed in the civil Court and on the promulgation of Ordinance XX of 1976, they were transferred to the Court of AC/ Collector, Chiniot who tried both the suits and disposed them of by separate judgments recorded on the same date viz. 24-1-1983. Both the suits were decreed in favour of the petitioners.
AC/Collector, reproduced in both the judgments issues framed in Suit No.40/AC and consequently both the suits were decided on the basis of findings recorded on the said issues. Result of the error was that the issues framed in Suit No.132/AC and particularly those relating to partial pre-emption, improvements unauthorised amendments in the plaint and the court-fee which were peculiar to that suit were neither discussed nor determined.
5. Respondents preferred two separate appeals which were heard together by the learned Additional Commissioner. The learned officer took note of the fact that the issues of one case were incorporated in the judgment of the other but he observed that the confusion arose because issues of both the cases were similar with minor differences". The observation was not wholly correct. However, learned Additional Commissioner proceeded to hear the appeals and asked the learned counsel for the respondents (appellants before him) to address arguments on all the points including the issues which had remained undecided, on the basis of evidence and material on the record. It may be observed that the learned counsel for the respondents admitted before the Additional Commissioner that the issue of partial pre-emption had to be decided against the respondent (vendees). Learned counsel also conceded that there was no evidence on the issue regarding the improvements which had, therefore, to be decided against the respondents.
Similarly, issue regarding the unauthorized amendments in the plaint was not pressed. In view of these admissions/ concessions, learned Additional Commissioner observed that "the learned trial Court did not commit any material irregularity nor left any material point untouched in its judgment". Learned Additional Commissioner then proceeded to hold on merits that the plaintiffs were the tenants of the suit land at all the three stages of the suit and their superior right of pre- emption was, therefore, established. Issue regarding the court-fee was also decided in favour of the petitioners. With these findings/observations, learned Additional Commissioner dismissed both the appeals by order dated 21-12-1983.
6. Respondents took the matter in revision before the learned Member, Board of Revenue, who came to the conclusion that the judgment of the trial Court suffered from the following serious material irregularities: ----
(i) The claim of each of the pre-emptors which was based on separate tenancy was not separately examined;
(ii) No separate findings were recorded by the trial Court in respect of the claim of each pre- emptor;
(iii) A joint pre-emption decree was granted in favour of the respondents without specifying their respective share in the decree; and
(iv) Some of the issues framed were not discussed in the judgment of one case and some issues were discussed in the other judgment to which they were not relevant.
According to the learned Member, the aforementioned irregularities were not rectifiable by the appellate Court nor did the findings given by the learned Additional Commissioner cure them.
Learned Member, therefore, by order dated 14-1-1985 remanded both the cases to A.C/ Collector, Chiniot for fresh hearing and decision. This order of the learned Member is under challenge in the present constitutional petition.
7. I have heard the learned counsel for parties at considerable length. The submission made by the learned counsel for the petitioners is that while remanding the case to the trial Court for rehearing and fresh decision, the learned Member, Board of Revenue, has not taken into consideration the fact that the issues conceded/not pressed by the respondent s-vendees before the Additional Commissioner could not be re-opened. Submission of the learned counsel is that it should have made clear in the order of remand that the issues conceded before the Additional Commissioner would not be re-tried and determined afresh. According to the learned counsel, in the absence of any such clarification, even the issues conceded before the Additional Commissioner would become open for re-trial. Argument of the learned counsel for the petitioners is that the issues regarding the partial pre-emption, improvements and the unauthorized amendments in the plaint stood concluded by the concession made by the learned counsel for the respondent before the Additional Commissioner and were not open' for re-trial. Learned counsel appearing for the respondents has quite frankly conceded this proposition. It may also be pertinently pointed out that the respondents in their revision petition before the learned Member, Board of Revenue, did not specifically challenge the findings /observations of the learned Additional Commissioner regarding the aforesaid three issues. In these circumstances, I have no option but hold that in view of the findings/ observations of the learned Additional Commissioner based on the concession /admission made before him by the learned counsel for the respondents, the issues regarding partial pre-emption, 'improvements and unauthorized amendments in the plaint stood concluded and are not open for retrial. Result, therefore, is that although I am not persuaded to interfere with the remand of the cases as such which 'is amply justified by the irregularities in the trial highlighted in the impugned order, I would like to make it clear that the learned trial Court when rehearing the canes shall treat as decided the aforementioned three issues and the findings recorded by the Additional Commissioner thereon shall be taken as conclusive and final. Except for these three 'issues, trial Court shall, of course, proceed with the hearing of both the suits and decide them afresh as directed by the learned Member, Board of Revenue.
8. It may be stated that ordinarily, I would have sent the cases back to the learned Member, Board of Revenue, for passing fresh orders in the light of the aforesaid observations but I have chosen to make necessary clarification myself in view of the fact that the learned counsel for the respondents has conceded the point that the findings on the aforementioned three issues stood concluded and were not opened for retrial. Remand of the cases to the learned Member, Board of Revenue, would have been a mere formality which has been avoided in the interest of justice.
With the aforesaid observations, the petition stands disposed of but there shall be no order as to costs in the circumstances of the case.