1. Facts of the litigation giving rise to the petition is constitutional jurisdiction briefly put are; on 21-1- 1979, one Fazal Din sold property consisting of 91 Kls. 17 Mls. Comprised in several field numbers, to Sub. Lal Khan, Masood Akhtar, Nasim Akhtar and Shamim Akhtar, his sons for Rs.60,000. Sale was made by a registered sale-deed on 21-1-1979. Allah Ditta, as tenant-in-occupation of land measuring 44 Kls. 4 Mls. Comprised in Khasra Nos. 183, 220, 221, 368, 417, 418 brought a suit in the Court of Collector, Sub-Division Kahuta to pre-empt the sale in favour of the vendees. Defendant No. 4 was minor, and was sued through Lal Khan, as guardian-ad litem. Vendees, on being served, appeared in Court, filed written statement and refuted the claim of the plaintiff. It was submitted that the plaintiff had no cause of action; that the plaintiff was instrumental in bringing about the bargain and was estopped to sue, that the valuation of the suit property for the court-fee and jurisdiction was incorrectly assessed; that the plaint was liable to rejection under Order VII, rule 11, C.P.C.; that as defendant No. 4 was a minor and was not sued through a guardian-ad litem, suit was barred by time. On merits of the cause, it was pleaded that the property was purchased for Rs.60,000. Defendants, also denied the plaintiff's right to pre-empt. Pleadings are correctly reflected in the issues framed which for facility of reference are reproduced below:- (1)Whether the plaintiff has no cause of action? O. P. D.
2. (2)Whether the plaintiff is estopped by his words and conduct to file this suit? O.P.D.
3. (3)Whether the suit is insufficiently stamped for the purposes of court-fee and jurisdiction? O. P . D .
4. (4)Whether the suit is not maintaigable under Order VII, rule 11, C.P.C.? O.P.D.
5. (5)Whether the suit is not maintainable under Order XXXII, rules 1, 2, 3, C.P.C.? O.P.D.
6. (6)Whether the suit is time-barred in view of the preliminary objection No. 6? O.P.D.
7. (7)Whether the plaintiff has superior right of pre-emption? O.P.D.
8. (8)Whether the ostensible sale price has been fixed in good faith and actually paid? O.P.D.
9. (9)If issue No. 8 is not proved, then what is the market value of the suit land? O.P. Parties.
10. (10)Relief.
11. In support, plaintiff relied on the statement of Abdul Khaliq, village Patwari to prove quinquennial averages Exh. P.1, recorded his own statement and formally brought on record copy of sale-deed, dated 21-1-1979 Exh. P. 2, copy of Khasra Girdawari from Kharif 1978 to Rabi 1981 Exh. P. 3, copy of Register Haqdaran Zamin for 1973-74 Exh. P. 4, copy of Register Haqdaran Zamin for 1977-78 Exh. P.
12. 5, copy of Register Haqdaran Zamin for 1981-82 Exh. P. 6, copy of Khasra Girdawari Rabi 1983 to Kharif 1984 Exh. P.
7. As against this, Sub. Lal Khan, one of the vendees, recorded his own statement and was supported by Muhammad Sarwar and Muhammad Shafi, D.W. 2 and D.W.
3. Defendants also relied on copy of Khasra Girdawari Exh. D. 2.
13. On examination of the aforesaid material, learned trial Court found for the respondent /pre- emptor, decreed his suit conditionally on payment of Rs.28,873.20 to be deposited in Court within two months, failing which Court observed that the suit shall stand dismissed. Decision of learned Collector is, dated 23-8-1984. Vendees went up in appeal before learned Additional Commissioner (Revenue), Rawalpindi Division, did not succeed as their appeal was dismissed on 17-1-1985.
14. Revision also proved unsuccessful and was dismissed by learned Member, Board of Revnue on 10- 4-1985. Mr. Ayaz Hassan, Advocate for petitioners has raised following points: (1) Allah Ditta as owner of the estate, brought a civil suit in respect of this very sale against the vendees in the civil Court on 16-12-1979, Court entertained the plaint, registered the suit, directed process to issue to the defendants for 29-1-1980 and also ordered that Zare Panjam (Rs.12,000) be deposited before the date fixed. On the date fixed, Raja Muhammad Sabir, Advocate, counsel for the plaintiff withdrew the suit. Zare Panjam was also not deposited. Withdrawal of the civil suit tent amounts to rejection of plaint and was appealable as a decree of the Court. Order, dated 20-1-1980 provided a bar of res judicata to the entertainment of a pre-emption claim on the grounds of tenancy before the Court of Collector; (2) Shamim Akhtar, defendant No. 4 in the suit, in the first instance was sued without the appointement of a guardian-aditemand by the time guardian was proposed and appointed, suit had become barred by time; (3) Courts, not only misread, but ignored vital/important pieces of evidence from their consideration and erroneously found that plaintiff had superior right.
15. Learned counsel has been heard at length and with his assistance I have also looked into the record. Copy of the plaint appended with the writ petition shows that Allah Ditta brought a suit for pre-emption against the vendees in respect of land measuring 91 Kis. 17 Mls. Purchased on 21-1- 1979. Suit was instituted on 16-12-1979. Reading of the plaint discloses that claim for pre-emption was based on ownership of the estate only. It is correct that Zar-e-Panjam was not deposited and the counsel for the pre-emptor made a statement on 29-1-1980 to withdraw the suit from the civil Court. However, Court dismissed the suit as withdrawn on 4-2-1980. Material question arising for consideration is whether order, dated 4-2-1980 passed by the civil Court in a suit for pre-emption instituted on the ground of ownership, provided any effective bar to the entertainment of a pre- emption claim on the ground of tenancy before the Collector. To my mind answer is clearly 'no'.
16. Reason being that sub-para. (5) of paragraph 25, in terms of provisions of Ordinance XX of 1976, confers exclusive jurisdiction on Collector to decide suits in which a right of pre-emption is claimed on the basis of tenancy. Accordingly, Allah Ditta could not have pressed in aid plea of tenancy before the civil Court and was compelled by inperative provisions of law to prefer separate claim before the Collector. A bare reading of sub-para. (5) of paragraph 25, Land Reforms Regulation 115 of 1972 shows that all suits for enforcing the right of pre-emption in respect of land comprised in a tenancy were made exclusively entertain able by Collector and jurisdiction of the civil Court to entertain, hear and decide such claims was expressly barred. Withdrawal of the claim from the civil Court shall have surely precluded the plaintiff from instituting any fresh suit in respect of the same cause of action or subject-matter, but could not be construed to prevent him from instituting a pre-emption suit in the Court of Collector on the basis of tenancy rights. Counsel, therefore, was not right to say that the suit was barred by res judicata or provisions of Order XXIII, C.P.C. Secondly, the fact that the guardian-aditemof minor defendant was appointed after the expiry of period of limitation prescribed for pre-emption suit, shall not attract the bar of limitation and the suit cannot be held to be barred by limitation. It is well-settled that a suit is validly instituted against a minor even if at the time of institution, there is no guardian-ad litem and the limitation will be saved by such institution. Minor is considered to be a party from the date of the institution and not when his guardian-ad litem for his representation is appointed by the Court. Refer Muhammad Ismail etc. v.
17. Muhammad Sarwar etc. 1980 SCMR 254: I now propose to address myself to the plea that plaintiff/ pre-emptor was not possessed of a superior right and the evidence led was not sufficient to warrant a finding in his favour. To support superior right, plaintiff relied on copy of Khasra Girdawari from Kharif 1978 to Rabi 1981 Exh. P. 3, copy of Register Haqdaran Zamin for 1973-74 Exh. P. 4, copy of Register Haqdaran Zamin for 1977-78 Exh.
18. P. 5, copy of Register Haqdaran for 1981-82 Exh. P. 6, copy of Khasra Girdawari from Rabi 1983 to Kharif 1983 Exh. P. 7, as also his statement on oath. Vendees in refutation, relied on the statements of Muhammad Sarwar, Muhammad Shafi D.W. 2 and D.W. 3, apart from the statement of Sub. Lal Khan, one of the vendees as D.W.
1. Copy of Khasra Girdawari Exh. D. 2 was also relied upon in which possession of Sub. Lal Khan in crop Rabi 1980 is recorded. Aforenoticed revenue papers clearly show that Allah Ditta plaintiff was in possession of the pre-empted property as non-occupancy tenant since 1973. It is correct that in course of hearing of the pre-emption suit by the Collector, one Meharban, Girdawar, on his own, visited the site, recorded statements of some witnesses and reported about possession of the suit property. His report, however, was not accepted by the Tehsildar and was rightly excluded from consideration by the Courts below. Parallel inquiry and that too without permission of the competent authorities was not permissible under law. There is voluminous evidence on record to prove that Allah Ditta was tenant of the suit property. No creditable evidence was adduced to dispute the correctness of entries in the revenue papers which are the best evidence of possession. Entries in record-of-rights attract presumption of truth which cannot be lightly brushed aside. On my own examination of evidence, I have also found that Courts below were not wrong in holding that plaintiff was in cultivating possession and had a superior right of pre-emption. In this view of the matter, it cannot be said that decisions reached by the Courts below were wrong in any sense of the term much less without lawful authority or without jurisdiction. Accordingly, I would uphold the decisions and dismiss the petition in limine.