1. The applicants by way of this revision application under section 115, C.P.C. Have called in question the judgment and decree dated 28-3-1991 passed by the IVth Additional District Judge, Larkana in Civil Appeal No,110 of 1991 whereby the judgment and decree dated 14-9-1989 passed by III-Senior Civil Judge. Larkana decreeing the Suit No,261 of 1993 were set aside.
2. The abovementioned suit was filed by Bahadur the predecessor-in-interest of applicants against Muhammad Paryal--now dead, and his legal heirs joined as respondents Nos.1-A to 1-I, and respondents Nos.2 to 5 for declaration and injunction and accounts of produce. It is the case of plaintiff/applicants that the land in dispute namely S.No,412 (4-04) acres situated in Deh Areeja "Taluka Dokri being an evacuee property was allotted to claimant Abdul Rehman Meo Rajput who agreed to sell the same to plaintiff by agreement of sale dated 26-11-1971 and thereafter executed a registered sale deed dated 23-5-1975 for consideration of Rs,10,000. Muhammad Paryal the defendant/respondent,No,1 who was Hari of the land filed pre-emption application before Mukhtiarkar Dokri under M.L.R. 115 which was rejected on 10-5-1976. On appeal, the Deputy Commissioner, Larkana respondent No,2 by his order dated 28-7-1976 set aside the order of Mukhtiarkar and ordered that Muhammad Paryal may purchase the land for a sum of Rs,10,000 within a period of one month and in case he failed to purchase the same within the stipulated period his right of pre-emption shall cease to operate rendering the order inoperative and ineffective. It is the case of plaintiff/applicants that Muhammad Paryal did not deposit the amount as ordered and preferred an appeal before Commissioner Sukkur Division, Sukkur against the 'said order, but his appeal was dismissed and the order of Deputy Commissioner, Larkana was maintained by the Commissioner, under his order dated 5-4-1977. Muhammad Paryal preferred a revision application before Member, Board of Revenue who by order dated 10-7-1978 reduced the price of land from Rs,10,000 to Rs,5,000; the plaintiff being aggrieved by this order filed a review application before Member, Board of Revenue but the same was rejected on 25-10-1989. The plaintiff being dissatisfied with the order dated 28-7-1976 and subsequent orders passed in appeal, revision and review reducing the price of land to Rs,5,000 filed the aforementioned suit on the ground that the said orders were illegal, void, mala fide and without jurisdiction. It was asserted in the plaint that on 26-11-1971 when the said agreement was executed in favour of Muhammad Paryal the latter had no pre-emption right; secondly, the Member, Board of Revenue reduced the price arbitrarily without assessing the market price as prescribed in rule 7 of the Land Pre-emption Rules; thirdly Muhammad Paryal failed to deposit the money as ordered by the Deputy Commissioner, Larkana, therefore, he had lost his right of preemption available to a Hari under M.L.R.115 as it was declared to be against injunctions of Islam and the questioned orders were illegal. Muhammad Paryal the defendant No,1 alone contested the suit and filed the written statement while the official defendants Nos.2 to 5 despite service of summons failed to file their written statement, therefore, they were proceeded against ex parte. The contesting defendant Muhammad Paryal explained in his written statement that actual area of the suit land' S.No,412 Deh Areeja is 2-04 acres and not 4-04 acres. He took the plea that in fact no agreement of sale was executed as stated by the plaintiff but Abdul Rehman has straightaway sold the land 2-04 acres to the plaintiff by executing a sale-deed which was registered on 23-5-1975 in violation of provision of para.25(3)(d) of M.L.R. 115 of 1972. According to him Abdul Rehrnan the claimant had in fact first agreed to sell the suit land to him for Rs,4,000 in presence of witnesses about 4/5 months prior to the registration of the said sale-deed when this fact came to the knowledge of one Muhammad Yousuf a Tapedar and son-in-law of plaintiff he rushed to Abdul Rehman and got the sale-deed registered in favour of his father-in-law namely Bahadur the plaintiff and when he (Muhammad Paryal) took the money to Abdul Rehman the latter informed him that he had sold the suit land to plaintiff. He stated in categorical terms that agreement of sale dated 26-11-1971 is a forged document which has been manipulated after the answering defendant filed his pre-emption suit before Mukhtiarkar Dokri. Regarding pre-emption money not deposited by him in time, he stated that his revision was pending before Member, Board of Revenue, therefore, there was no reason to deposit the said amount. He denied that the Member, Board of Revenue passed an ex pane order while reducing the sale price to Rs,5,000 and explained that in fact the plaintiff himself remained absent deliberately in spite of being served. He pointed out that in revision application the plaintiff was admittedly represented by his advocate and was heard at length whereafter the plaintiff's plea was rejected. He denied the grounds taken by the plaintiff for the purpose of filing the suit.
3. The trial of the suit proceeded on the following issues: Issue No,1. Whether the order passed by the defendant No,2 dated 28-7-1976 and subsequent orders of defendants Nos.3 and 4 are illegal, void, mala fide and without jurisdiction?
4. Issue No,2. Whether the claimant Abdul Rehman agreed to sell suit land to the defendant No,1. Prior to the registration of sale-deed in favour of plaintiff as alleged if yes, then what is its effect?
5. Issue No,3. Whether the defendant No,1 (Paryal) has got right of pre-emption under para.25(3)(d) of MLR-115 of 1972?
6. Issue No,4. Whether the plaintiff has no cause of action?
7. Issue No,5. Whether this Hon'ble Court has no jurisdiction?
8. Issue No,6. Whether the plaintiff is entitled to relief as sought by him?
9. Issue No,7. What should the decree be?
10. The contesting parties led evidence on these issues and after hearing counsel for the parties the learned Senior Civil Judge, answered the crucial issues in favour of the plaintiff and directed that preliminary decree be drawn. On appeal the judgment and decree were set aside hence this revision.
11. I have heard learned counsel for the parties and perused the material on record.
12. The registered sale-deed dated 27-5-1975 (Exh.133) shows that the claimant, Abdul Rehman sold his agricultural land S.No,412 (2-04) acres situated in Deh Areeja to Bahadur the predecessor-in- interest of the applicants herein for a consideration of Rs,10,000. The contest between the parties commenced when Muhammad Paryal the tenant/Hari on this land claimed right of pre-emption under MLR-115. He moved an application in this behalf before Mukhtiarkar and Sub-Assistant Land Commissioner, Dokri impleading Abdul Rehman, Bahadur and Muhammad Yousaf as respondents.
13. The Mukhtiarkar heard the parties, recorded statement and rejected the application of Muhammad Paryal by his order dated 10-5-1976. Aggrieved by this order, Muhammad Paryal preferred an appeal to Collector, Larkana respondent No,2 who by his order dated 28-7-1976 (Exh.135) allowed the appeal and permitted Muhammad Paryal to purchase the land in question within a period of one month in the sum of Rs,10,000 on the condition that if Muhammad Paryal failed to purchase the same within the stipulated period, his right of pre-emption shall cease to operate and render the order Inoperative and ineffective. Muhammad Paryal was not satisfied with this order, he preferred an appeal to the Commissioner, Sukkur Division Sukkur respondent No,3 who after hearing the parties and the representative of the Deputy Commissioner, Larkana rejected the appeal, vide order dated 5-4-1977 (Exh.136) Muhammad Paryal challenged this order in revision before Member, Board of Revenue who by his order dated 10-7-1978 (Exh.137) allowed the revision and reduced the consideration to Rs,5,000 directing the petitioner to deposit the amount with Mukhtiarkar, Dokri within a period of one month, Bahadur and Muhammad Yousuf were aggrieved by this order, they approached the Member, Board of revenue with a prayer to review the aforementioned order, but he rejected the review petition, vide order dated 25-2-1979 (Exh.138).
14. Bahadur, having failed to get relief from revenue authorities resorted to civil proceedings and filed the civil suit with the prayer that the order passed by Deputy Commissioner, Larkana on 28-7-1976 setting aside the order of Mukhtiarkar Dokri and rermitting the tenant namely Muhammad Paryal to purchase the suit land be declared illegal, void and against law, alongwith subsequent orders passed by the Commissioner and the Member, Board of Revenue. Reliefs of injunction, mesne profit, costs, etc. Were also sought by him. The main controversy rests on the point of right of pre-emption by Hari which is mainly covered by Issue No,1 . Learned trial Court answered this issue in the negative on the ground that in view of the law declared by the Honourable Supreme Court in the case, Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 the right of pre-emption under MLR-115 was repugnant to injunctions of Islam, but the First Appellate Court reversed this finding, holding that the Collector Commissioner and Member, Board of Revenue were competent to decide the claim of pre-emption of Muhammad Paryal under para.25(5)(6) and (7) of Land Reforms Regulation, 1972 (MLR-115). The learned counsel for petitioner contended that the learned First Appellate Court has misappreciated the legal position in that, irrespective of aforementioned judgment of Honourable Supreme Court the forum/authority deciding the right of pre-emption was seriously under question and basically, it was to be scrutinized if, the Collector who after rejection of the claim of Muhammad Paryal regarding his right of pre-emption was competent to pass such order under the provisions of the Land Reforms Regulation, 1972 and MLR-115 as amended by Land Reforms Ordinance, 1976 (Ordinance XX of 1976). He argued that on 10-5-1976 when the Mukhtiarkar passed the order rejecting Muhammad Paryal's claim of pre-emption he possessed such jurisdiction, but thereafter paragraph 25 of the Land Reforms Regulation, 1972 was amended through Ordinance XX of 1976 and subsequently through Act XLVIII of 1976 with effect from 19-7-1976 and new sub- paragraphs (5) to (9) were added, whereby the forums were upgraded and all the suits enforcing the right of pre-emption in respect of land comprised in a tenancy stood transferred to Collector concerned, assigning original jurisdiction to him, while Commissioner was designated as the Appellate Authority and the Member, Board of Revenue was conferred revisional jurisdiction. In consequence of this amendment, the Collector's order dated 28-7-1976 (Exh.135) in capacity of Appellate Authority was without jurisdiction as the Appellate Authority was the Commissioner. He maintained that the learned Appellate Court erred in holding that the order of Collector dated 28- 7-1976 and subsequent orders were legal. On this premise, the learned counsel for the applicant further submitted that the order of Mukhtiarkar rejecting the right of pre-emption of Muhammad Paryal held the field and since there was no decree in tenant's favour granting him right of pre- emption by the target dated 31-7-1986 within the meaning of law declared by the Honourable Supreme Court in the case of Sardar Ali v. Muhammad Ali PLD -1988 SC 287, it was rightly held by the trial Court that the right of pre-emption was repugnant to Injunctions of Islam as declared in Said Kamal Shah's case PLD 1986 SC 360. He argued that the finding of learned trial Court on Issues No,1 to 3 was correct and the suit was rightly decreed. On the other hand Mr. Moohanlal learned counsel for respondent No,1 contended that after commencement of Ordinance XX of 1976 all suits which were pending decision were transferred within the meaning of newly introduced sub-paragraph (5) of the Land Reforms Regulation, 1972 and the Commissioner became the appellate authority within the purview of subparagraph (6) only against an order passed by Collector deciding the suit in original capacity, but in the instant matter the original order was passed by the Mukhtiarkar and the appeal was to be decided by the Assistant Commissioner, therefore, at best it can be argued that the Deputy Commissioner, wrongly decided the appeal instead of Assistant -Commissioner and it cannot be said that the Deputy Commissioner passed an order without jurisdiction. He argued that when the matter is to be decided by a forum of lower grade and if the decision is rendered by an authority of higher grade it cannot be treated as without jurisdiction but merely a procedural irregularity, In support of this contention, he relied on the authorities Mst. Chaghi. v. Bachoo PLD 1984 Quetta 92; Muhammad Farash Khan v. Mst. Nishadar Jan PLD 1983 SC (AJ&K) 43 and National Bank of Pakistan v. Humayun Sultan Mufti 1984 CLC 1401 and argued that the order dated 28-7-1976 passed by Collector is not without jurisdiction. He further contended that Bahadur the predecessor-in-interest of plaintiffs/applicants was party to the proceedings before the Collector, he did not raise objection on the point of jurisdiction and subsequently he filed review application before the Member, Board of Revenue, wherein he failed to obtain a favourable order, therefore, when he himself invoked the jurisdiction he could not plead lack of jurisdiction at this stage. He relied on the cases of Sher Muhammad v. Munir Ahmed 1978 SCMR 167; Nawab Khan v. Waris Iqbal PLD 1976 SC 394 in this context. The learned counsel for respondent No,1 further emphasized that order of Collector has attained finality as Bahadur has not challenged the finding with regard to the right of pre-emption, but he has approached Member, Board of Revenue only for the reduction of price, therefore, the order dated 28-7-1976 of Collector declaring Muhammad Paryal entitled to right of pre-emption became effective and the suit which was filed in the year 1980 was barred under Article 14 of Limitation Act.
15. He contended that even if plea of limitation is not taken, primarily it is the duty of the Court, as laid down in the case of Shah Muhammad v. Mst. Maqsooda Begum 1988 CLC 412 to consider the point of limitation. He further argued that orders passed by the authority in exercise of powers under Land Reforms Regulation are legal as such the suit is barred. I have carefully considered all these contentions. The Mukhtiarkar Dokri had passed order in capacity of Sub-Assistant Land Commissioner, Dokri on 10-5-1976 and the parties have not questioned his jurisdiction to pass such order. After passing of the aforesaid order, the amendments were made in the Land Reforms Regulation, 1972 by Land Reforms (Amendment)
16. Ordinance, 1976 with effect from 19-5-1976 amending a number of provisions of the said Regulation. Paragraph 25 of the said Regulation was also amended and for the purpose of instant case the following subparagraphs are relevant: "(5) All suits for enforcing the right of pre-emption in respect of land comprised in a tenancy shall be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land in respect of which the right of pre-emption has been claimed is situated, and all such suits which may be pending in any Court immediately before the commencement of the Land Reforms (Amendment) Ordinance, 1976, shall on such commencement, stand transferred to the Collector concerned.
(6) Any person aggrieved by an order passed, by a Collector under the preceding sub-paragraph may, within thirty days of such order, prefer an appeal to Commissioner.
(7) The Board of Revenue may at any time of its own motion or otherwise call for the record of any case or proceedings under this paragraph which is pending Or in which a Collector or Commissioner has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such proceedings or order, and may pass such order in relation thereto as it thinks fit: Provided that no order shall be passed under this sub-paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard: Provided further that the record of any case or proceedings in which a Collector or Commissioner has passed an order shall not be called for under this sub-paragraph on the application of any aggrieved person made after the expiration of thirty days from the date of such order.
(8) For the purpose of this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a Civil Court and shall have all powers of a Civil Court under any law for the time being in force and the final order passed in such suits shall be deemed to be a decree of a civil Court shall be executed as such.
(9) In computing the limitation provided for in sub-paragraph (6) or sub-paragraph (7) the provisions of section 5 and section 12 of the Limitation Act, 1908 (IX of 1908), shall apply.
17. Explanation.--In this paragraph, 'Collector', 'Commissioner' and 'Board of Revenue' have the meaning assigned to them in the West Pakistan Land Revenue Act, 1967 (W.P. Act XVII of 1967)." Again amendments were enforced through Land Reforms (Amendment) Act, 1976 with effect from 19-5-1976 introducing the same abovementioned sub-paragraphs. In view of the above amendments all the suits for enforcing the right of pre-emption in respect of land comprised in a tenancy were to be exclusively heard and decided by the Collector and such suits pending in any Court before commencement of the Ordinance XX of 1976 i,e, to say before 19-5-1976 stood transferred to the Collector concerned by virtue of sub-paragraph (5), and then sub-paragraph
(6) made it clear that appeal if any, passed by Collector would lie to Commissioner. A perusal of newly introduced sub-paragraphs would show that the Collector was no more Appellate Authority with effect from 19-5-1976. The learned counsel for respondent No,1 argued that Commissioner would be deemed to be the Appellate Authority only in respect of an order passed by Collector and there was no provision as to who could be the Appellate Authority against an order passed by Mukhtiarkar. This argument appears to be technical in nature, for even if no provision is made in respect of the pending proceedings after amendment as to who would be the Appellate Authority against the order of Mukhtiarkar, sub-paragraph (5) unambiguously transferred all the suits i.e to say the causes enforcing right of pre-emption in respect of land comprised in a tenancy, to Collector and thereafter Collector possessed only original jurisdiction and not appellate jurisdiction. On the material date 28-7-1976 Ordinance XX of 1976 had already come into force and even the amending Act XLVIII of 1976 enforced with effect from 19-5-1976 was fully operative, therefore, in consequence of such amendment any order passed by Collector was coram non judice and without jurisdiction. The concept of an order passed by a forum of higher grade instead of lower grade propounded through the cases PLD 1984 Quetta 92, 1984 CLC 1401 and PLD 1983 SC (AJ&K) 43, would not advance the case of respondent No,1 as it would be seen that the principle laid down would be applicable when the higher forum and the lower forum possessed concurrent ' jurisdiction. In the instant matter at the time when the order dated 28-7-1976 was passed the Collector did not possess the appellate jurisdiction, but he was invested with orignal jurisdiction, whereas the appellate jurisdiction vested in the Commissioner, as such it would not be appropriate to assign sanctity to Collector's order simply by assuming that under the old law it was to be decided by Assistant Commissioner and the Deputy Commissioner also possessed similar powers for entertaining and deciding an appeal. In a more or less similar situation the point of jurisdiction came under scrutiny before a Division Bench of this Court (Circuit Court Larkana) in C.P. No,D-22/96 re: 'Ali Nawaz v. Mumtaz Ali and others' wherein it was clearly observed, vide judgment dated 28-8-1998 that after amendments the Deputy Commissioner was put to a position where he could enjoy the powers of original forum earlier enjoyed by Mukhtiarkar. The above order was challenged in the Honourable Supreme Court in Civil Petition No,687-K of 1998 'Ali Nawaz v. Mumtaz Ali and others', the Honourable Supreme Court upheld the order of this Court and declined to grant leave to appeal dismissing the petition by order dated 29-1-1999. Thus, it stands affirmed that appellate order passed by Deputy Commissioner after the said amendment is without jurisdiction. The learned First Appellate Court was of the view that Member, Board of Revenue possessed lawful powers under sub-paragraph (7) and that the right of pre-emption of Muhammad Paryal was established in pursuance of the order dated 10-7-1978 (Exh. 137) passed by Member, Board of Revenue. It may be pointed out that Member, Board of Revenue had examined the order dated 5- 4-1977 passed by Commissioner, who had upheld the order of Deputy Commissioner, Larkana and rejected the appeal. The Commissioner clearly expressed in his order that the right of preemption has been examined by the Deputy Commissioner, Larkana as such the first Appellate order was passed in continuation of Collector's Order dated 28-7-1976 and the revision petition was allowed by the Member, Board of Revenue only in respect of quantum of pre-emption amount. The basic order acknowledging the right of pre-emption has been held to be of the Collector which, as discussed earlier was without jurisdiction as it was passed in appellate capacity setting aside the order of Mukhtiarkar passed in original capacity. Thus, it was erroneously concluded by the First Appellate Court that the right of pre-emption stood established on the basis of order passed by Member, Board of Revenee on 10-7-1978. I am of the considered opinion that all the orders passed by revenue authorities based on the order of Deputy Commissioner are without jurisdiction, and illegal and confer no legal right on Muhammad Paryal. The finding of the learned First Appellate court in this context cannot be sustained and is set aside. As a consequence of such finding, the order of Mukhtiarkar dated 10-5-1976 will hold field and it will follow that Muhammad Paryal has no right of pre-emption. Learned counsel for applicant has rightly pointed out that the First Appellate Court has ignored the order of Mukhtiarkar, whereby the claim of pre-emption of Muhammad Paryal was rejected. That was the legal and valid order that militated against Muhammad Paryal's claim of pre-emption. The Civil Court had decreed the suit against Muhammad Paryal holding that in view of the law declared by the Supreme Court in PLD 1986 SC 360, the claim of pre-emption under MLR-115 was repugnant to the Injunctions of Islam. Although he has not referred to Sardar Ali's case PLD 1988 SC 287, but in considering the aforesaid finding that Mukhtiarkar's decision held field, the inevitable conclusion follows that on the crucial date, 31-7-1986 fixed by the Honourable' Supreme Court in the case of Sardar Ali v. Muhammad Ali PLD 1988 SC 287, in view of the law declared by Hon'ble Supreme Court in the case of Malik Said Kamal Shah PLD 1986 SC 360, the claim of pre-emption of Muhammad Paryal was against the Injunctions of Islam. A question was raised against the jurisdiction of Civil Court and the learned First Appellate Court held that since the orders passed by the revenue authorities namely Collector, Commissioner and Member, Board of Revenue were legal, the Civil Court had no jurisdiction to entertain the suit. In this context, it may be observed that in view of the earlier finding that the orders passed by revenue authorities from 28-7-1976 and onwards are not valid and legal being coram non judice and without jurisdiction, the Civil Court being the Court of ultimate jurisdiction possessed jurisdiction to declare the orders of Revenue Authorities as such. Reference may be made to the cases of Hamid Hussain v. Government of West Pakistan 1974 SCMR 356 and Syed Raunaq Raza v. Province of Sindh 1994 CLC 317. It was also held in the case of Bashir Ahmed v. Manzoor Ahrnad 1987 SCMR 1620 that the jurisdiction of Civil Court is barred only in cases where Collector acted within the limits of his power and did not violate fundamental principle of natural justice. This principle supports the case of petitioners as the Collector while passing the order dated 28-7-1976 had transgressed the limits of his power and assumed the status of appellate authority, a jurisdiction which he did not possess.
18. The learned trial Court has rightly answered this issue and finding of the First Appellate Court is accordingly set aside. An issue was also framed as to whether Abdul Rehman the original owner had entered into an agreement to sell the suit land to Muhammad Paryal prior to execution of sale-deed in favour of Bahadur. The learned trial Court answered this issue in the negative holding thereby that Abdul Rehman had not agreed to sell, the suit land to Muhammad Paryal. In this regard the Appellate Court is of the view that this issue was not properly worded, but even then this assertion would not create a right in favour of Muhammad Paryal as he was supposed to exercise right of pre-emption only after execution of sale-deed. The Appellate Court has examined other aspect of the matter as to whether Abdul Rehman had agreed to sell the suit land to Bahadur as per agreement of sale dated 26-1-1971 (Exh.132). He appraised the evidence on record and came to the conclusion that the said agreement does not find mention in the sale-deed nor there is mention of earnest money paid earlier. He was of the view that the agreement to sell dated 26-1-1971 could not be proved. This is absolutely a new finding and the trial Court has not given any finding on this point. On the face of it the reasoning of the First Appellate Court appears to be sound. Practically, this finding shall not affect the main issue as it has already been held above that all the orders based on the order of Collector, which itself was not a valid one being coram non judice, do not create any right of pre- emption in favour of Muhammad Paryal nor the order of Collector dated 28-7-1976 would become legal because of an agreement between the parties.
19. In conclusion of the foregoing discussion, it is held that Muhammad Paryal had not obtained a valid decree in respect of his right of pre-emption as tenant (Hari) before 31-7-1986 and, therefore, was not entitled to such right, as such the suit of Bahadur was rightly decreed granting the declaration prayed for to the effect that the order of Collector dated 28-7-1976 is illegal, void and mala fide, and so also subsequent orders passed by respondents Nos.3 and 4, and that the plaintiff is owner of S.No,412 (2-04) acres Deh Areeja. The consequential reliefs were rightly granted by the trial Court. Consequently, the impugned judgment and decree passed by the First Appellate Court are set aside. The revision application is allowed, leaving the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.