1. ' SAEEDUZZAMAN SIDDIQUI, J.---At the hearing of the case, we noticed that the appellants have filed this appeal under Article 185 (2)(d) of the Constitution as of right. Since the order of High Court was passed in the above ease in 2nd Appeal and the value of the subject-matter in the suit as well as in appeal was less than Rs,50,000 the appeal as of right is not maintainable in the case under Article 185(2)(d) of the Constitution. However, at the oral request of learned counsel for the appellant, we have treatd it as a petition for leave to appeal, and after granting leave to appeal converted it into appeal, and it is disposed of as follows:-- ' The father of respondent No,1, Muhammad Nawaz, sold the land measuring 501 Kanals and 1 Marla, situated in Mauza Mandhali, Tehsil Lodhran, District Multan, to appellants Nos.1 and 2 through Mutation No,98, attested on 16-2-1972. Respondent No,1 as the lineal descendant of vendor Muhammad Nawaz filed pre-emption Suit No,58 of 1973 before Civil Judge 1st Class, Lodhran, claiming right of pre-emption in respect of the above land. It is an admitted position in the case that the plaint in Suit No,58 of 1973 was presented before the Tehsildar on 2-1-1973 as on that date the Civil Judge was on leave. The plaint in the suit was therefore placed before the Civil Judge on 1- 2-1973 when he returned from leave. By about the same time another preemption suit in respect of the above land was also instituted against the appellants by respondents 2 to 5 in the Court of Civil Judge, 1st Class, Lodhran. Both the suits were proceeded together. The appellants resisted both the suits and on the basis of the pleadings of the parties, the trial Court framed as many as 21 issues. It is, however, admitted before us that out of these issues only issues Nos.4 and 18 mentioned in the impugned judgment of High Court are relevant for the disposal of the appeal. These issues were as under:-- ' Issue No,4: ' Whether the suit is time-barred? Issue No,18: ' Whether plaintiff has superior right of pre-emption qua rival preemptor and vendees?
2. ' Under issue No,4, the trial Court held that the plaint in suit was presentd within time and the court- fee was also paid within the extended period of time and as such the suit was competent. Under issue No,18, the trial Court found that plaintiff/respondent No,1 being the real daughter of vendor Muhammad Nawaz had a superior right of pre-emption. On the basis of these findings the trial Court decreed the suit of respondent No,1 and dismissed the pre-emption suit of respondents 2 to 5, by judgment dated 12-2-1981.
3. ' Respondents Nos.2 to 5 did not prefer any appeal against the judgment and decree of trial Court, which was challenged only by the appellants who were defendants in the suit. The appellants valued their at appeal at Rs,2,00,000 and filed the same before the High Court Lahore and it was registered as RFA No,10/81. A Division Bench of the Lahore High Court by judgment dated 26-11-1984, held that RFA No,10/81 filed by the appellants was not maintainable and it was accordingly directed to be returned to the appellants for presentation before a competent Court. The appellants challenged the above decision of High Court before this Court but their appeal was dismissed,on 16-6-1985 and the judgment of this Court is reported as Illahi Bakhsh v. Bilqees Begum (PLD 1985 SC 393). The appellants accordingly presented the memo. Of appeal returned to them by the High Court on 2-12-1984, on the same day before the District Judge, Multan which was registered as Civil Appeal No,293/13 of 1984 and was heard and disposed of by Additional District Judge, Multan.
4. ' The appeal presented before the District Judge, Multan, on 2-12-1984, against the judgment and decree of trial Court dated 12-2-1981, was time-barred on its face but the 1st appellate Court condoned the delay in presenting the above appeal on the ground that the appellant bonafide under a mistaken legal advice was prosecuting the appeal before the High Court.
5. ' Under issue No,4, the 1st Appellate Court held that the sale transaction was completed on 24-1- 1972 when the sale consideration of Rs,2,00,000 was paid by the vendees to the vendor Muhammad Nawaz and the latter delivered the possession of the land to the former. The presentation of plaint in the suit on 2-1-1973 before the Tehsildar was not considered as valid and accordingly it was held that on 1-2-1973 when it was placed before the Civil Judge, it was barred by time. Issue No,18 was decided in favour of respondent No,1 but as a result of negative finding on Issue No,4, the appeal filed by the appellants was allowed and the judgment and decree of the trial Court in favour of respondent No,1 was set aside by judgment dated 14-1-1987.
6. ' Respondent No,1 challenged the judgment and decree of the 1st Appellate Court dated 14-1-1987 in RSA No,54 of 1987 before the Lahore High Court which was accepted by a learned Judge in Chamber on 10-12-1991, giving rise to the present appeal.
7. ' The learned Judge in Chamber held that the appeal before the 1st Appellate Court was already time-barred as the law regarding valuation of suit in pre-emption cases was settled as early as the decisions in the cases of Mumtaz Begum v. Ch. Zulfiqar Ali and another (PLD 1960 Lahore 1088), Sardar Din v. Ellahi Bakhsh and another PLD 1976 Lahore 1 and as such there was no justifiable reason for the appellants to have valued their appeal at Rs,2,00,000 and file, the same before the High Court when the pre-emption suit was valued at Rs,1,520 for the purpose of court-fee and Rs,4,560 for the purposes of jurisdiction of the Court. The learned Judge in Chamber accordingly held that condonation of delay by the 1st Appellate Court under sections 5 and 14 of the Limitation Act was not valid. The learned Judge in Chamber further held that the presentation of plaint in the suit before the Tehsildar, Lodhran, was valid as under the notification dated 20-5-1972 issued by the District Judge, Multan, the plaint could be received by Tehsildar and in his absence, by the Naib-Tehsildar, whenever, the Civil Judges posted at Vehari, Mailsi, Khanewal, Shujabad and Lodhran sub-divisions, proceeded on casual leave or tour etc. The learned Judge in Chamber agreed with the findings of 1st Appellate Court that respondent No,1 being the daughter of vendor had the superior right of pre-emption.
8. ' The learned counsel for the appellants contended before us that the learned Judge in Chamber erred in holding that the suit filed by respondent No,1 was within time. It is urged that the transaction between the appellants 1 and 2 and the vendor was completed on 24-1-1972, and therefore, the date of attestation of mutation namely, 16-2-1972 was not relevant for determining the period of limitation prescribed for filing of the pre-emption suit. It is further contended that the presentation of suit by respondent No,1 before the Tehsildar, Ladhran was not proper presentation, as Tehsildar, Lodhran was not an officer of the Court who could legally receive the plaint in the absence of Civil Judge concerned. It is contended by the learned counsel that in the absence of Civil Judge concerned the plaint should have been presented to District Judge, Multan, who was competent to assign the cases to different Courts within his jurisdiction. On these premises the learned counsel contended that the suit when presented before the Civil Judge, Lodhran, on 1-2- 1973 was clearly time-barred.
9. ' With regard to concurrent findings of all the Courts below that respondent No,1, had a superior right of pre-emption, the learned counsel for the appellants contended, that the appellants had improved their status as tenant of the land in suit. Therefore, they had superior right of pre-emption under MLR 115. After hearing the learned counsel for the parties we are of the view that the appeal has no merit.
10. The period of limitation prescribed for filing of pre-emption suit under section 30 of Punjab Pre- emption Act, 1913 is one year from the date of attestation (if any) of the sale by a Revenue Officer having jurisdiction, in the Register of Mutations maintained under the Punjab Land Revenue Act, or from the date on which the vendee takes under the sale physical possession of any part of such land or property whichever date is earlier. There is a categorical finding in the case before us, by the High Court that as the appellants were already in possession of land as tenants prior to the sale in their favour, there was no physcial change of possession on 24-1-1972 when the A vendor admitted the sale transaction before the Revenue Officer, which could amount to a notice to the pre-emptor. In these circumstances, the date of attestation of sale in the present case was the relevant date for calculating the period of limitation under section 30 of the Pre-emption Act, 1913.
11. Apart from it, the learned Judge in Chamber rightly held that even if 24-1-1972 is taken to be the starting point of limitation for filing of the pre-emption suit by respondent No,1, it was filed in time as the plaint in the suit was presented before the Tehsildar, Lodhran on 2-1-1973. The learned counsel for the appellants does not dispute that on 24-1-1972 when the plaint was presented before Tehsildar, Lodhran, the Civil Judge, Lodhran, the only Judicial Officer at Lodhran was on leave. The learned counsel for the appellants also does not dispute existence of order dated 20-5-1972, issued by District Judge, Multan, which reads as follows:-- "It has been often noticed by this Court that whenever any of the Civil Judges posted at Vehari/Mailsi, Khanewal, Shujaabad, and Lodhran Sub-Division, proceeded on casual leave or tour etc., the litigant public faces a great hardship in filing their plaints ana petitions etc. Because no arrangements for the reception of fresh civil cases exist at present. The parties and their counsel in some urgent cases of civil nature rush to Multan and present their cases before this Court. In this process, they are further unnecessarily burdened with expenses. In order to remove the above inconvenience and in accordance with the provisions contained in Rule 7 (e) of High Court Rules and Orders, Vol. I, Chapter 1-B, I hereby authorise the Tehsildar or in his absence NaibTehsildar, Vehari, Mailsi, Khanewal, Shujaabad and Lodhran, to receive plaints and petitions. Etc. From the litigant public or their counsel in the absence of the Civil Judge posted in their respective sub- divisions and against proper receipt."
12. In view of the above notification by the District Judge, no exception could be taken to the presentation of the plaint on 2-1-1973 by respondent No,1 before Tehsildar, Lodhran. In the case of Rehmat Ali v. Noor Muhammad (1981 SCMR 159) this Court held, that authorisation by a Civil Judge to his Ahlemad' to receive plaint in his absence was valid authorisation. Rehmat Ali v. Noor Muhammad (1981 SCMR 159) and Khuda Bukhsh v. Muhammad Ismail (PLD 1978 Lahore 1049) were referred with approval in the case of Mosam Khan v. Mir Alam Khan (PLD 1992 SC 47). In Khuda Bakhsh v. M. Ismail (PLD 1978 Lahore 1049) the facts were very similar to the fact of the present case. In that case, the mutation was attested on 22-2-1969. The plaintiff/appellant filed pre- emption suit on 21-2-1970. As the Civil Judge concerned was away on tour from 21-2-1970 to 2nd March 1970, the plaint was presented before the reader who took it to Tehsildar the same day. The suit came up for hearing before the Civil Judge on 1-4-1970. The learned Civil Judge held that firstly there was nothing on record to show that the plaint in the suit was presented before the Tehsildar on 21st February, 1970 in the absence of the Civil Judge and secondly Tehsildar had no jurisdiction to entertain the suit since under section 23 of the Civil Courts Ordinance, 1962 only the District Judge or the Senior Civil Judge or any other Civil Judge appointed in this behalf were competent to entertain the plaint. On appeal the District Judge held that the plaint had been presented to the reader on 21st February 1970. However, the Jearned District Judge did not agree with the contention that the presentation of the suit before the Tehsildar was valid under Chapter 1-B, Para.7, Clause (c) of the High Court Rules and Orders which reads as follows:-- "(c) The members of the ministerial establishment are strictly forbidden to receive petitions, plaints or other documents direct from lawyers and their clerks or from litigants except when the Judge is on leave and no other judicial officer is incharge of his current duties. District Judges should, however, invariably make arrangements for the reception of plaints and petitions, etc., by another officer of a Mofassal or outlying Courts, arrangements should be made for the reception of plaints, petitions, documents, etc., by the Tehsildar or the NaibTehsildar in consultation with the Deputy Commissioner."
13. ' In 2nd appeal before the High Court the aforesaid Rule as well as the letter dated 27-5-1976 by the District and Sessions Judge, Multan to the Deputy Commissioner, Muzaffargarh authorising Tehsildar or Naib-Tehsildar, Alipur to receive plaints and applications during the absence of Civil Judge, Alipur, was relied upon. The learned Judge in Chamber while considering the import of Order IV, Rule 1, C.P.C. And para. 7 (c) of Chapter 1-B of High Court Rules and Orders held as follows:- - "14. This is in virtue of Order IV, Rule 1, C.P.C. That Order XLVI dated 17th of February 1966 was issued by the Civil Judge, Alipur, by which he appointed his reader or in his absence Ahmad of his Court, as an officer to entertain the plaints and applications during the absence of the Presiding Officer from the Headquarters on any account. Acting under para. 7-C of Chapter 1-B of the High Court Rules and Orders, the District Judge made the necessary arrangement for reception of the plaints, petitions, documents etc. By the Tehsildar or the NaibTehsildar.
15. The plaint was therefore presented on the 21st of February, 1970 in accordance with law to proper authorities. The suit was, therefore, within time."
14. In view of the above-stated legal position we are of the view that the presentation of the plaint before the Tehsildar during the absence of the Civil Judge, on leave, on 2-1-1973 was a valid presentation and as such the suit was within time.
15. ' The next argument of learned counsel for appellants before us is that the appellant being tenant of the pre-empted land had a superior right of preemption in view of para. 25 of the Land Reforms Ordinance. According to appellants' own showing the land in suit was sold to appellant on 24-1- 1972 and mutation was attested on 16-2-1972. It is, therefore, quite clear that the right of the appellant as tenant came to an end upon sale of the land in January, 1972, when he became owner of the suit land. Under para. 25 of the Land Reforms Regulations, 1972, the right of pre-emption was created in favour of persons who were occupying the land as tenants as and from Kharif 1972. The appellants having acquired the title in the suit land in their favour before Kharif of 1972, could not assert the right of pre-emption on the basis of their status as tenant in respect of pre-empted land.
16. In the case of Malik Pir Bakhsh v. All Muhammad 1992 SCMR 1031 this Court repelled the similar arguments as follows:-- "The first question whether a tenant who had ceased to be a tenant before Kharif, 1972, by becoming an owner of his erstwhile tenancy, could invoke his erstwhile tenancy for matching, challenging, or defeating the right of a pre-emptor on the date of sale was considered by this Court in Fazal Khan and another v. Ghulam Rabbani PLD 1983 SC 265 and answered as hereunder:- - "The petition of the vendee/defendant is, however, different in that the law permits in his case any improvement in his status qua the rights of pre-emption, provided such improvement takes place before the institution of the suit. But, in the present case the question is whether any improvement in the rights of the appellants had taken place before the institution of the suit on 2-7-1972. They rely on the right of pre-emption created in favour of the sitting tenants on the land comprised in their tenancies, and this right became vested expressly with effect from Kharif 1972 and not retrospectively from any prior date. Plainly, therefore, the right of pre-emption created by this provision of law was available only to persons who were tenants on the date of the enforcement of this law or in the future. The learned Single Judge has held, that since on the vesting of the ownership right in them, their status as tenants came to an end, they ceased to be tenants with effect from the date of sale viz. 12-7-1971 and, therefore, on the date of the coming into force of the provisions of Article 25(3) of the Land Reforms Regulation they were no longer tenants so as to be vested with the right of pre-emption created thereunder. The question of improvement in the status of the appellants, therefore, does not arise since no superior rights were created in their favour under the provisions invoked by them. Once they became owners they could not claim any right as tenants as their rights as tenants would be extinguished by merging of the interests of tenants into ownership rights."
17. ' In view of the above stated legal position we do not find any merit in appeal which is accordingly dismissed with no order as to costs.