' Through this Constitution petition Muhammad Siddiq, petitioner has challenged the order passed by Member Board of Revenue, Punjab, Lahore dated 20-1-1981, whereby he dismissed the revision filed by the petitioner and further has challenged the order passed by Additional Commissioner dated 16-12-1980, whereby he accepted the appeal of respondents Nos.1 and 2 namely Ashraf Ali and Shaukat Ali and set aside the judgment and decree passed by Assistant Commissioner/Collector, Sargohda dated 20-5-1979 decreeing the suit of pre-emption of Muhammad Siddique, petitioner against Sher Muhammad, vendee.
2. Brief facts of the case are that one Rustam Ali sold out agricultural land fully described in the plaint to Sher Muhammad through registered sale-deed dated 14-7-1977. Muhammad Siddique, present petitioner, claiming himself to be tenant of the suit land filed. Pre-emption suit before the Collector/Assistant Commissioner, Sargodha on 13-7-1978. Sher Muhammad vendee initially contested the suit by filing written statement. Sher Muhammad, vendee is in fact brother of Muhammad Siddique, pre-empttor. The Collector framed the issues, though the plaintiff/pre- emptor was not recorded as tenant of the suit land in the Khasra Gardawari for the crucial crop; still on the basis of the oral evidence produced by the pre-emptor the Collector decreed the suit filed by present petitioner in his favour against Sher Muhammad vide judgment and decree dated 20-5-1979. It is pertinent to note that in fact on 12-7-1978, Ashraf Ali and Shaukat Ali sons of Rustam Ali the respondents Nos.1 and 2 herein, had also filed pre-emption suit before the civil Court on the ground that they have superior right qua vendee, being the sons of the vendor, Rival pre-emptors namely Ashraf Ali and Shaukat Ali had not been impleaded as party in the suit filed by Muhammad Siddique which was decreed on 20-5-1979. However, rival preemptors filed an appeal before the Additional Commissioner against the said judgment and decree passed in favour of Muhammad Siddique on 20-5-1979 by Collector/Assistant Commissioner; in the appeal Sher Muhammad was also party. The appeal filed by the rival pre-emptors was accepted and the Addlitional Commissioner set aside the judgment and decree passed by the Collectotr/Assistant Commissioner in favour of Muhammad Siddique vide judgment and decree dated 16-12-1980 on the ground that Muhammad Siddique has not been recorded as tenant in the Khasra Gardawri for the crucial crops. The petitioner Muhammad Siddique filed revision petition before the Member, Board of Revenue but the revision petition was also dismissed by the Member, Board of Revenue, Punjab, Lahore vide order dated 20-1-1981; hence this Constitution petition by Muhammad Siddique, pre-emptor.
3. As regards the suit for pre-emption filed by Ashraf Ali and Shaukat Ali, Muhammad Siddique, rival pre-emptor, was also impleaded as party. The trial Court decreed the suit of the plaintiffs in their favour vide judgment and decree dated 17-7-1982, however, it was a conditional decree i,e, subject to the decision of the present writ petition filed by Muhammad Siddique.
4. Two appeals were filed against judgment and decree dated 17-7-1982 i,e, one by Sher Muhammad vendee and the 2nd appeal by rival pre-emptor/present petitioner. Additional District Judge dismissed both the appeals vide judgment and decree dated 26-4-1984. Muhammad Siddique, petitioner has filed C.R. 999/D of 1984 in this Court challenging the judgment and decree passed in favour of rival pre-emptors i,e, Ashraf Ali and Shaukat Ali sons of Rustam Ali and maintained by the lower appellate Court.
5. At the very outset the learned counsel for the petitioner, has prayed for impleading Sher Muhammad as respondent in the Constitution petition. The learned counsel for the petitioner has argued that the order passed by the Additional Commissioner is illegal as the Additional Commissioner has failed to consider the oral evidence produced by the petitioner to prove that he was the tenant of the suit land at the crucial stage; hence the order passed by the Additional Commissioner dated 16-12-1980 is a result of misreading and non-reading of the material evidence produced by the petitioner; further argued that the order dated 20-1-1981 passed by the Member, Board of Revenue Punjab, Lahore in revision, is not speaking order, therefore, the same is also illegal,void and without lawful authority.
6. On the other hand the learned counsel for the respondents Nos.1 and 2 has argued that this Constitutional petition is liable to be dismissed on the ground that the plaintiff/petitioner has failed to implead Sher Muhammad, vendee as party; further argued that it is well-settled law that vendee in preemption suit is necessary party, while in this Constitutional petition, the petitioner seeks restoration of pre-emption decree passed by the Collector against vandee; hence without impleadings Sher Muhammad, vendee such decree cannot be restored; hence this Constitutional petition is liable to be dismissed; further argued that Additional Commissioner as well as Member, Board of Revenue, Punjab, Lahore have concurrently found that Muhammad Siddique, petitioner was not tenant over the suit land at the crucial crop; hence the question of fact having been concurrently found by the lower forums against the petitioner; hence it is not open to challenge, in this Constitutional petition; hence this writ petition is liable to be dismissed.
7. I have considered the arguments of the learned counsel for the parties and have gone through the record requisitioned by this Court from the lower forums; no doubt Sher Muhammad is a necessary party and he was not impleaded initially in this Constitutional petition but in this case, as the judgment and decree passed in favour of Muhammad Siddique, petitioner, by Assistant Commissioner dated 20-5-1979 had never been challenged by Sher Muhammad; hence he felt satisfied with this decree, therefore, if he is allowed' to be impleaded at' this stage, it would not be in any way detrimental to the interest of Sher Muhammad. In the circumstances, I allow the oral request of the petitioner to implead Sher Muhammad as party.
8. Under Section 28 of the Punjab Pre-emption Act rival pre-emptor has to be impleaded as party to the suit, while Muhammad Siddique, petitioner had not impleaded Ashraf Ali and Shaukat Ali, rival pre-emptors as party in this suit, though the suit filed by Ashraf Ali and Shaukat Ali was prior in time; furthermore, while accepting the appeal filed by Ashraf Ali and Shaukat Ali, rival pre-emptors, the Additional Commissioner ought to have remanded the case to the Collector/Assistant Commissioner for re-trial of the suit after impleading the rival pre-emptors as party and thereafter, decision of the suit on merit.
9. In the circumstances, this Constitution petition is allowed; the judgment and decree passed by the Collector/Assistant Commissioner dated 20.5-1979 in favour of the said Muhammad Siddique is illegal, void and without lawful authority, as the rival pre-emptors were not party to the suit, while the order passed by the Additional Commissioner dated 16-12.1980, is also void and without lawful authority, as the Additional Commissioner after accepting the appeal of rival pre-emptors, should have remanded the case back to the Collector for fresh decision of the suit after impleading rival preemptors as party; furthermore, the order of the Member, Board of Revenue dated 20-1-1998 i,e, also illegal and void being superstructure based on void orders, therefore, the judgment and decree passed by Collector dated 20-5-1979 and orders passed by Additional Commissioner dated 16-12-1980 and order passed by Member, Board of Revenue dated 20-1-1981, are hereby declared as void and without lawful authority.
' Consequently, this petition is accepted and the case is remanded to the Collector/Assistant Commissioner, Saddar Sub-Division, Sargodha, who shall treat the suit for possession through pre- emption filed by the Muhammad Siddique, to implead Ashraf Ali and Shaukat Ali, rival preemptors, as defendants in the said suit and 'the Collector shall proceed with the suit afresh in accordance with law. The parties shall appear before the trial Court/Collector/Assistant Commissioner on 23- 12-1999. However, there shall be no order as to costs.