' This appeal is directed against judgment and decree dated 8-4-1987 passed by the learned Additional District Judge, Multan through which the appeal filed by Rab Nawaz etc. Respondents has been accepted and decree dated 2-12-1984 passed by learned trial Court in favour of the present appellants for possession of land through pre-emption has been set aside.
2. The facts giving rise to this second appeal shortly stated are that the land in dispute was sold by Shamsud Din through registered sale-deed dated 24-9-1977. Muhammad Yaseen deceased the predecessor-in-interest of the appellants on 9-9-1978, filed a suit before the learned trial Court to pre-empt the sale on the ground that he was collateral, co-sharer and co-owner of village as such had superior right of pre-emption. The vendces i.e, defendants 1 to 3 contested the suit and it was disclosed by them in their written-statement that the suit land had already been pre-empted by Rab Nawaz and Fateh Mohammad in whose favour a compromise order/decree for possession of land through preemption had already been passed by Collector Lodhran on the ground that they were tenants on the land in dispute. The said Rab Nawaz and Fateh Mohammad were impleaded as defendanats 4 and 5 in the suit. On the pleadings of the parties the learned trial Court framed the following issues:--
(1) Whether description of the suit land is incorrect?
(2) Whether the suit is undervalued?
(3) Whether the plaintiff is estopped to file this suit by his conduct?
(4) Whether the property in dispute has been collusively pre-empted vide order of the learned Collector, Lodhran, by Rab Nawaz and others? If so, its effect?
(5) Whether the suit land is pre-emptible sale?
(6) If issue No,5 is decided in favour of the plaintiff whether he has superior right of pre-emption?
(6-A) Whether ostensible sale price was fixed in good faith or actually paid?
(6-B) What was the market value of the suit land at the time of sale?
(7) Relief.
3. After recording evidence the learned trial Court decided issue No, 5 in affirmative. It was held that the transaction in question was in fact a sale whereas it was shown to be an exchange simply to protect the land from being pre-empted. Under issue No, 6 it was held that Muhammad Yaseen deceased/plaintiff was collateral of the vendor as also co-sharer in Khata in dispute. Issue No, 4 was decided in favour of the plaintiffs and it was held that the order/decree dated 22-5-1979 passed in favour of defendants 4 and 5 by Collector on the basis of tenancy was obtained by them collusively and the same did not affect adversely the maintainability of the suit. Issues Nos. 1, 2 and 3 were decided against the defendants. Under issues Nos. 6-A and 6-B it was held that the suit land was sold for an amount of Rs,60,000. In the result, the suit of the plaintiffs was decreed through judgment dated 2-12-1984.
4. Rab Nawaz and Fateh Muhammad the rival pre-emptors who obtained decree in their favour from the Court of Collector assailed this judgment and decree of the learned trial Court in appeal before the learned lower appellate Court. The learned lower appellate Court through judgment and decree dated 8-4-1987 impugned in this appeal accepted the appeal and set aside the judgment and decree of the learned trial Court mainly on reversal of findings recorded on issue No,
4. It has been held by the learned lower appellate Court that since no appeal was filed against the order of Collector and the decree passed by Collector Lodhran was in the knowledge of the present appellants who did not challenge the same which was still intact and held the field. It was also held that there was no evidence on the record that the said decree was obtained through collusion or fraud. As a consequence of these findings the suit filed by predecessor-in-interest of the appellants was dismissed.
5. The main burden of arguments presented by learned counsel for the appellants in support of the appeal was that under section 28 of the Punjab Preemption Act, 1913, respondents/rival pre- emptors were bound to implead the appellants as defendants in their suit filed by them in the Court of Collector as such the decree dated 22-5-1979 obtained by them from the Court of Collector was nullity qua the rights of the appellants to pre-empt the land. Reliance has been placed on Ali Hassan and others v. Sardar Khan and others PLD 1952 Lah.
489. The argument is certainly ingenious but not tenable on close analysis. Section 28 of the Punjab Pre-emption Act reads as under:-- "28. Concurrent hearing of suits. ---When more suits than one arising out of the same sale or foreclosure are pending the plaintiff in each suit shall be joined as defendant in each of the other suits and in deciding the suits the Court shall in each decree state the order in which each claimant is entitled to exercise his right."
' From a bare reading of this section it is manifest that the rules enacted in this section are applicable only where more suits than one arising out of the same sale are pending before the same Court and the Court ultimately could pass decree as required in respect of all the pre- emptors by stating the order in which each claimant is entitled to exercise his right of pre-emption.
Section 28 of the Punjab Pre-emption Act as such would be attracted only if the forum for enforcement of right of pre-emption by all the rival pre-emptors is the same. It was under Martial Law Regulation No,115 known as Land Reforms Regulation, 1972, that a tenant on the land sold, was granted first right of pre-emption. Prior to amendment of this Land Reforms Regulation, 1972 through Act XLVIII of 1976 which came into force on 19th July, 1976 the forum for enforcement of this right was the Civil Court and there was no legal impediment in applying section 28 of the Punjab Pre-emption Act because the suits for enforcement of right of preemption by rival pre-emptors on any of the grounds given in section 15 of the Punjab Pre-emption Act were also triable by the Civil Court. The change brought in, by this amending Act of 1976 in para.25 of Land Reforms Regulation was that all suits for enforcing the right of pre-emption in respect of land comprised in a tenancy were to be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land was situated. All such pending suits before the commencement of this amending Act stood transferred to the Collector concerned by operation of the said law. The suit filed by Rab Nawaz and Fateh Muhammad, on the ground of tenancy, therefore, was triable exclusively by the Collector, which was a different forum from ordinary Civil Court, where the suit filed by the appellants was pending because that was triable by a Civil Court, therefore, section 28 of the Punjab Pre-emption Act was not attracted.
6. The next question which arises for determination is whether any party in the suit before a civil Court could challenge the validity and legality of order passed by Collector decreeing the suit of tenant to pre-empt the sale or a civil Court in the presence of such a decree in favour of tenant could pass unconditional decree in favour of rival pre-emptor who claimed right of preemption on the ground of collateralship and co-sharership. Para 3 of Land Reforms Regulation, 1972 enacts that the provisions of the said Regulation and any order made therein shall have effect notwithstanding anything to the contrary in any other law or in any order or decree of a Court or Tribunal or other authority etc etc. In view of these provisions of law it can safely be held that in a case where there is rivalry between the order of Collector decreeing the suit of the tenant and decree of Civil Court of general jurisdiction, the order of Collector is to take effect. It is not permissible in view of these express provisions of law giving overriding effect to an order of Collector passed under the said regulation, to allow any person to challenge the validity or order of the Collector before a civil Court or in any other proceedings except by filing appeal or revision as provided in para 25(6) (7) of the Land Reforms Regulation, 1972 as amended by Act XLVIII of 1976. The appellants could not claim that a decree be passed in their favour by the civil Court ignoring the order of Collector passing decree in favour of Rab Nawaz and Fateh Mohammad under the said Land Reforms Regulation.
This view finds support from judgment reported as Yaseen v. Khan Muhammad and another 1987 SCM R 944. The relevant portion of this judgment may be reproduced for facility of reference.
"Although respondent No, 2 the decree-holder from the revenue forum, has been impleaded as a respondent, the decree passed in his favour was not challenged in the High Court by an independent proceedings whereby the judgment and decree passed upto the Board of Revenue could have been set aside. Neither the Civil Court nor the District Court and the High Court in the proceedings arising out of civil suit filed by the petitioner, could set aside the judgment and decree passed in favour of respondent No, 2 in the revenue hierarchy."
' It may be mentioned here that in this reported case the decree passed by the Collector was based on compromise.
7. Faced with this difficulty, learned counsel for the appellants tried to overcome it by arguing that in the said reported case the tenant initially impleaded the rival pre-emptor in the suit filed by him in the Court of Collector and the said rival pre-emptor having assailed the said decree in the higher revenue forums, i.e, the Commissioner and the Board of Revenue, failed to challenge it further in the High Court in constitutional jurisdiction, whereas in the case in hand the appellants were not impleaded as defendants in the suit before the Collector as such they could not avail of remedy of appeal and revision which could legally be availed of only by a party to the proceedings. I am afraid, the argument has no merits. Paragraph 25(6) of Land Reforms Regulation, 1972 as added by Act XLVIII of 1976 provides that any person aggrieved by an order passed by a Collector may within 30 days of such order prefer an appeal to Commissioner. The right to file appeal against the order of Collector is not granted to or conferred only on a party in the proceedings and the use of the expression "any person aggrieved" as against the words any "party to proceedings", in this sub-para makes it clear ihat right of appeal has been granted to every such person who feels aggrieved even if such a person was not party in the proceedings. The findings of the learned lower appellate Court that the order/decree of the Collector in favour of respondents was intact having not been challenged or set aside in the revenue hierarchy as such could not be ignored, are perfectly in accord with the rule laid down by the Supreme Court in Yaseen's case supra.
' The learned lower appellate Court dismissed the suit of the appellants. The findings of the learned trial Court that the appellants were collaterals of the vendor as also co-sharers in Khata were not challenged on merits before the learned lower appellate Court, the correctness of which was also not called in question before me during the arguments. That being so, the appellants certainly had a right to pre-empt the sale next to respondents 5 and 6 who had been granted order/decree by the Collector to pre-empt the sale as tenants on the land in dispute. The suit of the appellants could not be dismissed. The learned lower appellate Court, therefore, committed an illegality in dismissing the suit which was liable to be decreed subject to the order/decree passed in favour of respondents 5 and 6 by the Collector.
8.
9. In the result, this appeal is partly accepted. The judgment and decree passed by the learned lower appellate Court is hereby modified to the extent that a decree for pre-emption is passed in favour of the appellants on the condition that the same would be subject to the order/decree passed on 22-5-1979 by the Collector in favour of respondents 5 and 6. There will be no order as to costs.