This judgment shall dispose of Civil Revisions Nos.1531/D of 1988 arid 1532/1) of 1988 as common questions of law and facts are involved therein. It shall, however, remain on the file of C.R. No.1531/1) of 1988.
2. The suit filed by the respondent for possession of land through pre-emption has been decreed on the ground that he was collateral of the vendor.
3. Learned counsel for the petitioners has challenged the said decree on the ground that at no stage of the proceedings a decree was passed in favour of the respondent before 31-7-1986, therefore, the impugned decree could not have been passed after the said date and having been passed after the said date is a nullity as the suit was not maintainable.
4. Learned counsel for the respondent admitted that no decree was passed in the suit in favour of the respondent before 31-7-1986. He, however, contended that before the learned lower appellate Court the findings on the issue regarding superior right of pre-emption were conceded to be correct, therefore, this concession would amount to waiver by the petitioner.
5. I am afraid it is difficult to accept this contention. The admission by a party that a collateral has superior right of pre-emption is not waiver but are admission of the legal position as the law itself declares the right of the collateral being superior. The concession was with regard to only the correctness of the said finding but not abandonment of all objections against the decree. The law is firmly settled now by the Supreme Court that in such suit no decree could have been passed after 31-7-1986. The Courts below, therefore, have acted not only with material irregularity and illegality but exercised jurisdiction not vested in them under the law to pass decree in such a suit after 31-7-1986. The revision petition is hereby accepted, the impugned judgments and decrees of both the Courts below are set aside and the suit filed by the respondent is dismissed. The parties are left to bear their own costs.