The applicant filed First Class Suit No. 165 of 1981 in the Court of Senior Civil Judge, Shikarpur and has claimed the following reliefs: "(i) To declare that the impugned orders dated 23-4-1981 passed by the Senior -Member, Board of Revenue Sindh-defendant No.2 and the orders dated 29-3-1981 and 17-12-1980 passed by the Commissioner Sukkur and the Deputy Commissioner Shikarpur are illegal, void, ultra vires, mala fide, without lawful authority and without legal effect, nullity in the eye of law, inoperative and ineffective and are against the established provisions of law and accepted principles of equity and justice.
(ii) To grant Permanent Injunction restraining the defendants from executing the impugned orders or taking any action whatsoever on the basis of the said illegal and void orders in respect of the suit land and also from interfering with the legal and lawful possession of the plaintiff thereof.
(iii) To award costs of the suit to the plaintiff.
(iv) To grant any other equitable relief which the Honourable Court deems fit and proper."
2. The basis for claiming above reliefs is that the applicant had purchased 40 Paisa share from respondents Nos.6 and 7 in Serial No.180/9-16 and 181 /4-20 situated in Deh Jalal Jakhro, Taluka Garhi Yasin, District Shikarpur (hereinafter referred to as disputed property). The respondents were sole owners of the said property and they had their possession to the extent of the share belong to them in the property. The disputed property was purchased through registered conveyance-deed.
The respondent No.5 owned fifty paisa share in the said agricultural land. After the applicant purchased the land the respondent No.5 filed an application before the Deputy Commissioner and Collector Shikarpur under the provisions of Rule 3 of the Sindh Land Commission Pre-emotion Rules.
1974. The relevant provisions reads as follows:-- "3.(1) A tenant, who claims first right of pre-emotion in respect of land comprised in his tenancy shall make an application to the Revenue Court of competent jurisdiction exercising the Powers of Tribunal under the Sindh Tenancy Act, 1950 within a period of 12 months commencing from the date of execution of sale.
(2)....................................................................................
(3) On receipt of application under rule 3 the Tribunal shall proceed to hear the case in accordance with the provisions of the Sindh Tenancy Act, 1950.
(4) If the Tribunal is satisfied, after giving due opportunity to the parties concerned of being heard in the matter, that the sale of the land was without the consent of the tenant-applicant, the Tribunal shall grant relief to the tenant-applicant on payment of the sale price."
The learned Deputy Commissioner allowed the said application and inter alia, held as follows:- "The Counsel for the applicant argued that the applicant is established Hari of the entire Serial Nos.
And also shareholder to the extent of 0-50 Ps. Share. The shareholders Illahi Bux S/o Fateh Muhammad and Amir Bux S/o Fateh Muhammad (Respondents shown at Serial Nos.2 and 3) have sold their share to the extent of 0-40 Ps. Share to respondent Amanullah S/o Ghulam Muhammad by Regd. Sale-deed dated 25-2-1979 without the consent of the applicant who has got preferential right to purchase the same as a tenant under rule 3 of Sindh Pre-emotion Rules, 1974.
I agree with the arguments for the counsel for the applicant who has come with clean hands to claim right of Pre-emotion which is granted to the applicant under Rule 5 of Sindh Pre-emotion Rules, 1974 to purchase the disputed land by depositing the sale price of the land to be determined separately before the Mukhtiar kar Garhi-Yasin who shall make payment of the same to the respondent No.4. "
3. The appeal filed by the applicant was also dismissed and the revision tiled was also dismissed summarily by the Senior Member Board of Revenue Sindh Hyderabad.
4. It appears that earlier there was litigation between the Moula Bux the respondent No.5 and the respondent No.6 and 7 alongwith Pir Bux, Sher Muhammad and Wadero Ghulam Muhammad which resulted into compromise and para.3 of the said compromise which was adopted as a rule of the Court on 28-8-1978 and reads as follows:--- "3. Thai if the defendants 2 and 3 at any time intend to sell their 50 paisas share in Serial Nos.180 and 181 Deb Jalal Jakhro when they would first offer the same for sale to Moula Bux plaintiff and in case of his refusal can sell to others."
5. The respondent No.5 contested this case while respondents Nos.6 and 7 supported the case of the applicant as they were sellers. The respondent No.5 stated that the order passed by the Deputy Commissioner was valid and sustainable, therefore, could not be called in question in the Civil Court and that the applicant has no title. It is pertinent to point out that during the pendency of the litigation the rules quoted above were declared un-Islamic by the Hon'ble Supreme Court of Pakistan in the case of Government of N.-W.F.P. Through, Secretary, Law Department v. Malik Said Kamal Shah (PLD 1986 SC 360).
6. The respondent No.5 was co-sharer in both the survey numbers. He claimed the right of pre- emption tinder the above-quoted rule 3 on the ground that he was tenant. He did not claim pre- emption through proper suit. On the basis of pleadings of the parties the Court framed the following issues:----
(1) Whether the suit is not maintainable according to law?
(2) Whether the suit is barred by any law?
(3) Whether the plaintiff has purchased the suit land from the defendants Nos.6 and 7 as alleged?
(4) Whether the possession of the suit land is with the plaintiff since the inception of alleged sale?
(5) Whether the defendant No.5 has any right or claim of pre-emption under the Sindh Land Pre- emption Rules, 1974?
(6) Whether the orders passed by the defendants Nos.2, 3 and 5 are illegal?
(7) Whether the plaintiff is entitled to any relief?
(8) What should the decree be?
The trial Court after the evidence was recorded by the parties held that Issues Nos. l and 2 were not pressed and Issues Nos.3 and 4 in the affirmative. Issue Na.5 in the affirmative. Issues Nos.6 and 7 in negative. As such dismissed the suit of applicant vide judgment dated 30-1-1990 and decree dated 6-2-1990. The applicant filed Appeal No.2 of 1990 which was dismissed on 22-1-1991 followed by decree dated 26-1-1991. Both these judgment and decree have been impugned in this Revision Application which was admitted for regular hearing.
7. After hearing the parties in the open Court on 30-4-1997 this Revision Application was allowed for the reasons to be recorded separately and the suit filed by the applicant was decreed in terms of his prayer. These are the reasons for passing such order:----
(a) The basis of the claim of the respondent No. 5 in his application before Deputy Commissioner Shikarpur (Application was not filed by the applicant) were (i) as he was co-sharer, (ii) he was tenant in possession and that the respondents Nos.6 and 7 had undertaken in a civil suit which resulted into the compromise decree that they will sell the disputed' property to him. Such position is reflected from the impugned order of the Deputy Commissioner and has been quoted in the earlier part of this judgment. The basis of the jurisdiction for claim before the tribunal of limited jurisdiction are under Rule 3 quoted supra and that is only that the person should be tenant. Apart from the tenant the claim of the respondent No.5 also states that he was a co-sharer as well as the beneficiary of the compromise of civil suit. In other words his claim was not based exclusively that he was tenant and, therefore, the pre-emptory rights to purchase the land. The application filed by the applicant before the Deputy Commissioner, Shikarpur was not, filed nor the report of Mukhtiar kar which was the basis of the claim was placed on record. Therefore, while appreciating respective contention of the parties there was no other document except the order of the Deputy Commissioner which was impugned since the order of the Deputy Commissioner reveals that the claim was not made exclusively as tenant, therefore, he had no jurisdiction to pass the order.
(b) If the claim of the respondent No.5 is not based exclusively as a tenant then he should have filed a regular suit for pre-emption and before filing the suit under the Muhammadan Law he should have given the Talabs in accordance with the Muhammadan Law which admittedly were not done by the respondent No.5. The respondent No.5 chose a shorter procedure of approaching the Tribunal under the above quoted rules. The above quoted rules could not be invoked in case the respondent No.5 claimed right as co-sharer as well as beneficiary of the compromise application filed in the civil suit earlier. Since no suit was filed and the jurisdiction of the Tribunal under Rule 3 on the basis of co-sharer and beneficiary under the compromise application was not available, therefore, the order passed by the Deputy Commi4sioner is without jurisdiction, as he travelled beyond the authority conferred on him by the rules.
(c) The applicant examined himself as well as Tapedar of the area. The Tapedar has given the report that after the land was purchased the applicant was in possession and the respondent No.5 was also in possession. The respondent No.5 was not in the exclusive possession of the entire disputed property. He was in possession in respect of his own share in the property. Such report was disbelieved by the Deputy Commissioner. The basis of disbelieve are wanting. The learned Civil Judge maintained that the applicant in possession of the disputed property to the extent of his own share while deciding the Issue No.4. The learned Civil Judge recorded the following findings:-- - "The defendant Moula Bux on the other hand has stated in his cross-examination that he is Hari of the entire area of both survey numbers and that he has denied the suggestion that plaintiff Amanullah is paying land revenue of his share. Since the defendant Moula Bux has, stated in his evidence that plaintiff Moula Bux is paying land revenue of his share in the disputed land to the Government so it appears that he is in possession thereof. A perusal of the compromise application submitted by Moula Bux and defendant in Civil Suit No.4 of 1978 which was pending in Court of Civil Judge, Garhi-Yasin in which it is mentioned that Illahi Bux and Amir Bux were Haris of the disputed land of Rs.0-50 share in both survey numbers and they will remain Haris ofthe same also from Kharif 1979 hence I rely on this document as it is certified copy Exh.91 on the record and hold that the plaintiff is hari of the suit land to the extent of his share after he purchased the same from defendants Illahi Bux and Amir Bux and is in possession thereof, the issue is answered accordingly. "
The learned First Appellate Court also maintained the findings that the respondent No.5 was in possession to the extent of his own share in the following words:- "Besides, it is admittedly fact that the disputed land is undivided land which is the property of respondent No.5 to the extent of fifty paisas and the share of respondents Nos.6 and 7 is to the extent of forty paisas. The respondent No.5 was the Hari to the extent of his own share of the suit land and so were the respondents Nos. 6 and 7.
He was not the tenant in respect of the entire property which was sold by the respondents Nos:6 and 7 to the applicant. The learned First Appellate Court repealed the argument of the applicant that the respondent No.5 should have filed the suit and not the application holding that it is the will of the respondent No.5 to invoke "favourable" proceedings. I am afraid that I am unable to agree with such reasoning. A Tribunal possesses limited jurisdiction and unless the requirement of limited jurisdiction are available (without other considerations') the Tribunal would not have the jurisdiction to deal with the case. It is not the case of favourbale remedy to be invoked but it is the remedy available in law which is to be invoked by the party within the four corners of the law providing remedy. I have already held that a co-sharer or a beneficiary of compromise application in an earlier suit could not approach the Deputy Commissioner for invoking jurisdiction under the rules. The Deputy Commissioner is not the executor of the compromise application nor he had the jurisdiction to decide the case in relation to the co-sharers. Learned counsel for the applicant drew my attention to Issue No.5. According to him the learned trial Court erred in law in deciding the Issue No.5 in favour of the respondent No.5. The learned Trial Court at typed page 7 of the judgment ruled as follows:- "In these circumstances it has become clear that before the sale of the disputed land by Illahi Bux and Amir Bux to the plaintiff they themselves were Haris of the disputed land and that the plaintiff was not Hari of the disputed land prior to its purchase. The plaintiff has also not proved that he has got any land adjacent to the disputed land prior to his purchase, therefore, his right of pre-emption to purchase the disputed land does not appear. The defendant Moula Bux is owner of half share in survey numbers 180 and 181 hence he had right of pre-emption to purchase the remaining area from Illahi Bux and Amir Bux because he was already owner of its half portion. The issue is accordingly decided in affirmative."
According to the learned counsel for the applicant after having given such finding that the respondent No.5 was 50 paisa shareholder and was cultivator of his own share is defective. The plaintiff has never raised the contention in the suit that he is entitled to purchase the land or that he has the right of pre-- emption. The respondent No.5 was not the tenant of the whole land. The land in possession of the applicant was not under the tenancy of the respondent No.5, therefore, his application under Rule 3 was not maintainable. I would, therefore, hold that the findings of the trial Court on Issue No.5 are erroneous and not sustainable and equally order of Appellate Court upholding such finding is unsustainable.
(d) Since I have already held that the Tribunal under the abovestated rules had no jurisdiction to pass the impugned order and since the order of the Deputy Commissioner is declared illegal, therefore, decision on appeal as well as revision maintaining illegal orders are also illegal. Reliance is placed upon Yousuf A.I v. M. Aslam Zia and 2 others (PLD 1958 SC 104). Consequently, therefore, I would hold that the impugned orders are not sustainable in law and are declared to be illegal.
(e) Mr. Mazhar A.I M. Siddiqui, learned counsel of the respondent has contended that there are concurrent findings on facts recorded by the trial Court and the Appellate Court and in exercise of revisional jurisdiction such findings may not be set aside. Ordinarily, it is true that the concurrent findings of facts recorded by the Tribunals and the Courts below may not be set aside in revisional jurisdiction. However, this principle is not without exception. If the orders passed by the trial Court maintained by the Appellate Court is contrary to the weight of evidence, ignoring the material evidence or recorded by misreading the evidence it constitutes the illegal exercise of jurisdiction possessed by the trial Court and the Appellate Court as such an order passed with material illegality can always be set aside in exercise of the revisional jurisdiction conferred on this Court.
Even otherwise I have held that the order passed by the Deputy Commissioner Shikarpur suffers from patent illegality and without any lawful authority. I have already quoted the evidence and the findings recorded by the Courts below in the earlier part of this judgment. Consequently, therefore, the arguments of the learned counsel for the respondent No.5 is without any force.
8. For the above reasons the suit filed by the applicant was decreed while allowing this Revision Application with no order as to costs.