' MUHAMMAD AFZAL LONE, J.---This appeal through leave to appeal has arisen out of a suit filed by the appellants against the respondents for possession of the land in dispute, in exercise of their right of pre-emption on the ground that the land comprised on their tenancy. The suit was initially filed in the Civil Court and decree on 7-11-1975. On the vendees' appeal, the Additional District Judge remanded the case to the trial Court on 12-5-1976 for decision afresh after framing an issue in respect of the appellants' superior right of pre-emption. After remand, in view of the conferment of exclusive jurisdiction on the Collector to entertain and hear suits for enforcement of right of pre- emption in respect of land comprised in the tenancy; the suit was transferred to the Assistant Collector/Collector Mailsi, who framed the additional issue, tried the same and on the basis of the evidence on the record came to the conclusion that only one of the pre-emptors was tenant in a portion of the land in the joint Khata, with which the other pre-emptors had no concern, and that none of them was in clutivating possession of the land at the time of the sale. In view of these findings he dismissed the suit by order dated 4-10-1976. This dismissal was not interfered with by the, Additional commissioner as an Appellate Court. His order in this behalf is dated 20-5-1977. The appellants then filed a revision petition before the Board of Revenue, but the learned Member expressed his inability to differ with the concurrent findings of the Courts below. Consequently, the revision also failed. This is by order dated 8-10-1980. The unsuccessful pre-emptors thereafter invoked the writ jurisdiction of the High Court but their writ petition was dismissed by the learned Single Judge vide judgment dated 9-12-1980. The reasons which prevailed with him are:-- " even if the possession of some of the plaintiffs is accepted in parts of the land the fact that they have joined with persons who were strangers to the land, the rights of the pre-emptors will be extinguished. According to the judgment of the Assistant Commissioner in Khatuni No,3, plaintiff No,5, was a tenant but the other plaintiff had no cultivation on that land. Similarly in Khatuni No,14, plaintiff No,10, alone was tenant. The petitioners while filing their suit for pre-emption have joined persons who had no cultivation on Khatuni No,3, or Khatuni No,
14. On that account whatever rights plaintiff No,5 or plaintiff No,14, had in Khatuni No,3, or Khatuni No, 14, will be effected because of the joining of the strangers. On account of this basic fault in the suit there is no occasion for interfering with the decision of the Revenue Courts."
2. The appellants sought leave to appeal from the judgment of the High Court (C.P. 257/81), which was refused on the ground that the case was hit by the judgment in Said Kamal's case (PLD 1986 SC 360). They then preferred a Review Petition (No,5/89) and pointed out that while the matter was pending in the hierarchy of the Civil Court's decree dated 7-11-1975 was passed in their favour by the trial Court. This plea was entertained by the order dated 30-6-1990. The review petition was allowed and leave granted to examine the point as to whether in the circumstances of the case any advantage could be given to the petitioners on the basis of the said decree.
3. The question as to whether or not the Civil Court's decree dated 7-11-1975 could enure for the benefit of the appellants to save their suit from being hit by the rule laid down in Said Kamal's case need not detain us. Subpara. (8) of para. 25 of the Land Reforms Regulation, incorporated therein by virtue of Act XLVII of 1976 clearly indicates that the Collector, Commissioner and the Board of Revenue are deemed to be Civil Court and the decree passed in the suit before them shall be deemed to be a decree of the Civil Court and executed as such. Further, the powers of the Civil Court under any law for the time being inforced have also been conferred on them while hearing such a suit. Though the legal fiction created by the deeming clause is for a limited purpose, yet there is no good ground to deprive the appellants of the benefit of Civil Court's decree for the purpose of Said Kamal's case. We hold, accordingly.
4. On merits it has been contended that no specific issue was framed to cover the controversy regarding the appellants' possession over the land. In the submissions of the learned Counsel, at the relevant time, the entire land was in their exclusive cultivating possession; that the High Court failed to consider the documents annexed to the writ petition, which fully established their possession. Learned Counsel has also expressed a grievance that the High Court did not summon the record applied for by them, which included documents establishing the appellants' cultivating possession. It has also been urged that the vendees brought a suit against the appellants for recovery of share of produce from a part of the land, which by itself furnished evidence of their possession at least over the said land. The application of doctrine of sinker by the High Court on the office (sic) Atta Muhammad v. Ahmed Bakhsh (PLD 1971 Lah. 401), referred to in the impugned judgment, has also been assailed.
5. There is no substance in any of these submissions. Issue No,1 relating to the superior right of pre- emption is comprehensive enough to cover the controversy relating to the appellants' cultivating possession as tenants over the suit land. There is no merit in the arguments claiming additional issue. The question of possession is a question of fact; on which all the Revenue Courts returned a verdict against the appellants. Even on examination of the record before him, the decision of the learned Single Judge was to the same effect. The learned Counsel has failed to particularize the documents which was on the record and the High Court failed to notice the same. In exercising its Constitutional jurisdiction the High Court was not acting like a Court of appeal and largely had to see as to whether the orders brought before it for removal through judicial review, suffered from any jurisdictional defect or patent illegality. Such a scrutiny had to be made on the strength of the record annexed to the petition and which the Revenue Courts had the occasion to examine. Even if some record was not summoned by the High Court that by itself in the circumstances of the case is not fatal to the impugned judgment. As regards the institution of suit by the vendees we notice from the record that Mian Khan respondent entered the witness-box, but he was neither cross- examined on this point, nor he was confronted with any document evidencing the filing of the suit.
6. Only the appellant's objection as to the application of doctrine of sinker remains to be considered. Since all the appellants were not found in cultivating possession of the suit land; the association with the sale transaction of the co-pre-emptors, who were not tenants, and thus strangers, fully justified the extension of doctrine of sinker to the case in hand, which falls within the mischief of the rule laid down in Atta Muhammad's case.
7. There is no legal or factual flaw in the impugned order to justify interference therewith. This appeal having been found without merit, is dismissed, leaving the parties to bear their own costs.