' FAZAL ILAHI KHAN, J.---This is petition for leave to appeal against the judgment of Lahore High Court, Rawalpindi Bench, Rawalpindi dated 27-6-1993 in Civil Revision Petition No,229 of 1962.
2. Land measuring 44 Kanals 5 Marlas situated in Mauza Sheikhupura, Tehsil and District Jhelum was owned by Rana Hamid who sold 16 Kanals 18 Marlas in favour of Fazal Hussain through Mutation No, 244 attested on 6-8-1960 and land measuring 27 Kanals 6 Marlas vide Mutation No,247 dated 2-10-1960.
3. Mst. Musharaf Sultana, predecessor-in-interest of respondents preempted these sales in two separate suits which were tried and decreed by the trial Court on 7-12-1961 with the direction to deposit sale price on or before 8-1-1962 which was deposited as such. The judgments and decrees were challenged by the defendant/vendee in Appeals Nos.12 of 1962 and 13 of 1962. The learned District Judge, Jhelum on 1-5-1962 accepted both the appeals set aside the judgments and decrees of the trial Court and dismissed the suits on the ground that the sales were not pre- emptible. The plaintiff/pre-emptor aggrieved by the judgments and decrees of the learned District Judge challenged the same in Civil Revision Petitions Nos.298 of 1962 and 299 of 1962.
4. Civil Revision Petition No,298/62 was converted into R.S.A. And accepted on 19-3-1968 and the case was remanded to the learned District Judge for fresh decision on merits. Petitioner's application for permission to file L.PA. Was dismissed on merits.
5. After the remand petitioner made an application at the time of hearing of the appeal that the respondent had withdrawn the pre-emption money, therefore, the pre-emption decree passed in her favour had abated. No argument was addressed by the learned counsel on the finding given on rest of the issues by the learned trial Judge in decreeing the pre-emption suit. The learned District Judge after considering the case-law, relied upon by the learned counsel for the parties, in support of the respective pleas, rejected the petitioner's application on the ground that such objection though available was not raised before the High Court at the time of the hearing of R.SA.
That the respondent had already deposited the pre-emption money after the acceptance of the appeal in the High Court. Accordingly, both the appeals were dismissed. The aforementioned judgment was challenged in revision by the petitioner which was dismissed by the learned High Court basing reliance on the judgments in Sanwal Das v. Jaigo Mal and others (AIR 1924 Lahore 68), Mt. Bibi Aisha v. Shadi Khan (AIR 1935 Peshawar 143) and Kisan Dewaloo Mali v. Ganga Bai w/o Jairan Mali and others (AIR 1939 Nagpur 279) wherein it has been held that withdrawal of pre- emption money after dismissal of the suit or after passing of the decree by the trial Court, would not defeat the pre-emptor's claim on technical ground of the nature. In this view of the matter the revision petition was dismissed on 30-1-1990. In the meantime the respondent obtained possession of the suit land in execution of the decree. Petitioner approached Mst. Musharaf Sultana, the decree-holder, and entered into an agreement of sale with her which did not materialise.
6. It was after the above that the petitioner came to know that out of the two revision petitions filed against the pre-remand judgments of the District Judge of which the learned High Court has decided only one, treating it as R.S.A. And on its acceptance had remanded the case to appellate Court, but the learned District Judge instead of giving decision in one of the appeals, wrongly dismissed both of them. The petitioner, therefore, applied for restoration of possession in respect of the land subject-matter of second Revision Petition dismissed for non-prosecution in the year 1979.
However, his application was dismissed by the executing Court and appeal against the same was also dismissed. Petitioner then filed a Revision Petition No,1245 of 1990 which was heard alongwith Regular Second Appeal No, 57/80 (treating as review petition (connected review petition which had stood as undecided by mistake earlier as stated above). The learned High Court on facts and circumstances of the case vide order, dated 28th January, 1990 held that the learned District Judge acted without jurisdiction in dismissing both the appeals as only one of the appeals stood remanded to him. In consequence on acceptance of the revision petition the orders of the Courts below dismissing the applications for restoration of possession were set aside vide order dated 28- 1-1990 in respect of the land subject-matter of the Second Revision Petition. This Court while ordering status quo in CP-174-R/90 arising out of the judgment of learned High Court in Civil Revision No,1245 and 1957 in R.S.A. No,57/80 mentioned above, made the following observation:- "After hearing the learned counsel, we consider it a fit case for further examination of the points dealt with in the impugned judgment, those raised in the petition including a very vital question; whether, it was not due to the mistake of Courts that the file of one Civil Revision out of the two, filed by Mst. Musharaf Sultana in the first round, was not sent to the District Court alongwith the remand order; whether, it was not a technical mistake in the remand order whereby one file/revision was not mentioned therein though the District Court assumed otherwise, and finally whether the petitioners have been made to suffer for the innocent but somewhat mysterious (or other) mistakes committed at any of the proceedings. This would also include the examination; whether it was not permissible and proper for the High Court to have corrected a mistake in the proceedings under its inherent powers as also those available under section 153, C.P.C. Leave to appeal, accordingly, is granted."
7. Civil Appeal No,21 of 1991 against the judgment of Lahore High Court, dated 28th January, 1990, Civil Revision No,1245 of 1975 and Regular Second Appeal No,57 of 1990, by the respondents and Civil Appeal No,134 of 1962 against the order of Lahore High Court, Rawalpindi Bench dated 8-2- 1992 and Civil Revision No,299 of 1962 by the petitioner were heard jointly and by consolidated judgment the petitioner's appeals were dismissed while the connected appeal filed by the respondent was found infructuous by judgment dated 7-7-1992. After the above on restoration the Second Revision Petition (No,299/62) was also accepted. The judgment and decree of the learned District Judge decreeing the respondent/plaintiff's suit, was restored by judgment dated 27-6-1993; hence, this petition for leave to appeal.
8. We have heard the learned counsel for the petitioner and perused the record. Admittedly the suit property was decreed in favour of Mst. Musharaf Sultana through protracted litigation. The only ground on which the preemption decrees were challenged in appeals was withdrawal of pre- emption money which question was finally decided by this Court as stated above. Decree-holder got possession in execution of the decree and then transferred the decreed land through a registered sale-deed in favour of the respondents as he himself entered into an agreement of sale of the land with her and then when this land was sold to the respondent did not challenge the decree-holder's rights to transfer the property rather pre-empted the sale but his suit was dismissed for non-deposit of the pre-emption money in compliance of the order of the Court. Such being the case we find no infirmity in the judgment of the learned High Court and dismiss the petition.