JUDGMENT MUHAMMAD ZAFAR YASIN, J. - Through this Constitutional 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 Addl. 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, Sargodha dated 20.5.1979, decreeing the suit of pre- emption pf 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-emptor. The Collector framed the issue, though the plaintiff/pre-emptor was not recorded as tenant of the suit land in the Khasra Girdawari 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-emptores 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 pre-emptores filed an appeal before the Addl. Commissioner against the said judgment and decree passed in favour of Muhammad Siddique on 20.5.1979 by Collector/Assistant Commission; in the appeal Sher Muhammad was also party. The appeal filed by the rival pre-emptores was accepted and the Addl. Commissioner, set aside the judgment and decree passed by the Collector/Assistant Commissioner in favour of Muhammad Siddique vide judgment and decree dated 16. IS'.. 1980 on the ground that Muhammad Siddique has not been recoded as tenant in the Khasra Girdawari for the crucial crop. 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 Constitutional 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-emptores, 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. The 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. Addl. District Judge dismissed both the appeals vide judgment and decree dated 26.4.1984. Muhammad Siddique, petitioner has filed C.R. 999/D/84 in this Court challenging the judgment and decree passed in favour of rival pre-emptores 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 Constitutional petition. The learned counsel for the petitioner has argued that the order passed by the Addl. Commissioner is illegal, as the Addl. 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 Addl. 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 had 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 pre-emption suit is necessary party, while in this Constitutional petition, the petitioner seeks restoration of pre-emption decree passed by the Collector against vendee; hence without impleading Sher Muhammad, vendee such decree cannot be restored; hence this Constitutional petition is liable to be dismissed; further argued that Addl. 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 Asstt.
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 preemptor has to be impleaded as party to the suit, while Muhammad Siddique, petitioner had not impleaded Ashraf Ali and Shaukat Ali, rival pre-emptores as party in his 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- emptores, the Addl. Commissioner ought to have remanded the case to the Collector/Assistant Commissioner for re-trial of the suit after impleading the rival pre-emptores as party and thereafter decision of the suit on merit.
9. In the circumstances, this Constitutional 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-emptores were not party to the suit, while the order passed by the Addl. Commissioner dated 16.12.1980, is also void and without lawful authority, as the Addl. Commissioner after accepting the appeal of rival pre-emptores, should have amended the case back to the Collector for fresh decision of the suit after impleading rival pre-emptores as party, furthermore, the order of the Member Board of Revenue dated 20.1.1981 i.e. Also illegal and void being superstructure based on void orders, therefore, the judgment and decree passed by Collector dated 20.S.1979, and orders passed by Addl. 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.
10. Consequently this petition is accepted and the case is remanded to the Collector/Asstt.
Commissioner, Saddar Sub-Division, Sargodha, who shall treat the suit for possession through pre- emption filed by the Muhammad Siddique, as pending and shall direct Muhammad Siddique, to implead Ashraf Ali and Shaukat Ali, rival pre-emptores, 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.