' This is a Constitutional petition. By the vendees in a pre-emption matter and is directed against the judgment of the learned Member (Revenue), Board of Revenue Punjab, Lahore, dated 1-7-1985.
The facts of the case may be noted.
2. Land measuring 35 Kanals and 2 Marlas representing 31/192 share of Khata No,83 (the total area of which measures 217 Kanals, 5 Marlas) situated in Chak No,160, Tehsil and District Jhang was owned by one Sher Khan, vide, registered sale-deed, dated 6-6-1978, the disputed land (35 Kanals, 2 Marlas) was sold to the petitioner for a consideration of Rs,50,000. Respondent No,4, claiming to be a tenant on the suit land, filed a suit to! Pre-emption under Paragraph 25 of the Land Reforms Regulation, 1972 (M.L.R. No,115). The suit was decreed by the learned Assistant Commissioner/Collector vide order, dated 5-4-1988 for a consideration of Rs, 50,000.00. Against this order, both the parties field appeals before the learned Additional Commissioner,
3. The pre-emptor disputed the same consideration and asserted that it was Rs,30,000 and not Rs,50,000 while the vendees assailed the decree. The learned Additional Commissioner, vide his order, dated 7-2-1982 held that resrondent .No,4 was thoroughly negligent, contumacious and careless in affixing proper court-fee and was therefore, not entitled to any indulgence. Accordingly, the plaint was rejected under Order VII, Rule 11, C.P.C. He relied on Walayat Khatoon v. Khalil Khan and others (PLD 1979 SC 821).
4. Respondent No,4 invoked the provisional jurisdiction of the learned Member, Board of Revenue who found that unless the extent of the deficiency the court-fee had been determined and the petitioner given an opportunity of making up the deficiency, the plaint could not be rejected. The order of the learned Additional Commissioner, dated 7-2-1982 was, therefore, set aside. The suit of the pre-emptor-respondent No,4 was decreed and the learned trial Court was directed to determine extent of the court-fee required to be paid on the valuation of the suit i,e, Rs, 29,416.25.
This was vide order, dated 1-7-1985 of the learned Member Board, of Revenue, which has been assailed in this constitutional petition.
5. The writ petition was decided vide order, dated 29-6-1998. It was held that the pre-emptor was entitled only to 31/192 share of the land comprised in his tenancy. On reaching this conclusion the judgment of the Hon'ble Supreme Court in Fateh Khan v. Abdur Rehman (1983 SCM R 293) and judgment of this Court in Noor Muhammad v. M.B.R. And three others (1985 CLC 571) (inadvertently mentioned in the earlier judgment as 1995 which has .Been corrected today) were relied upon.
Accordingly, the case was remanded, to the learned Member Board of Revenue to determine the extent to which respondent No,4 was entitled to the decree.
6. Respondent No,4 approached the Hon'ble Supreme Court in Petition for Leave to Appeal No, 1316- L of 1998 which was disposed of on 29-7-1999 with the consent of the parties in the following terms:-- "Learned counsel for the parties addressed arguments on the controversy at some length. After some time, they, however, jointly submitted before the Court that it would be appropriate if the matter was heard by the High Court to resolve the controversy instead of sending it to the Board of Revenue which would unnecessarily prolong the, matter. This request of the learned counsel for the parties appears to be fair and just. The suggested course shall surely shorten the litigation instead of prolonging it. With the consent of the learned counsel for the parties, we would ask the High Court to hear and decide the case itself. The hearing shall be concluded by the High Court within three months."
7. Learned counsel for the parties have been heard. The record has been examined with their assistence. The sale in this case had taken place on 6-6-1978 while the suit was filed on 6-6-1979.
Therefore, the relevant period to determine the extent of tenancy of respondent No,4 is 'Kharif' 1978 (date of sale) and Kharif' 1979 (the date of sale) since the 'Kharif' starts from 1st May as held by the Hon'ble Supreme Court in Malik Pir Bakhsh and others v. Ali Muhammad (1992 SCM R 1031).
According to Khasra Girdawari for Kharif 1976 to Rabi 1979 (Exh.P.1) the petitioner was recorded as tenant on a tote! Area measuring 99 Kanals and 12 Marlas in Kharif 1976. However, the entries of the 'Khasra Girdawari show some changes in Rabi 1979. As a result of these changes the petitioner was recorded as a tenant on an area measuring 60 Kanals, 14 Marlas. It may be added that Girdawari for Kharif 1979 has not been placed on the record. It is not the case of the vendees that there were further changes in Khasra Girdawari after Rabi 1979. Therefore, on the basis of the entries of Rabi 1979 respondent No,4 was entitled to 31/192 share of 60 Kanals, 14 Marlas, the land comprised in his tenancy on the date of the suit.
8. The learned counsel for the respondents attempted to dispute the rule laid down in the case Fateh Khan (supra) and Noor Muhammad (supra) and placed reliance on Muhammad Taj and another v. Member, Board of Revenue and 3 others (1997 SCM R 1113) and Khuda Bakhsh v. A.C. And others (1985 CLC 788) to contend that since the land sold was 35 Kanals, 2 Marlas and respondent No,4 was in possession of more than 35 Kanals, 2 Marlas, he was entitled to the entire land sold, The submission of the learned counsel for the pre-emptor has been considered. The finding of this Court as to the applicability of the rule land down in the aforesaid cases was not disturbed by the Hon'ble Supreme Court and instead the exercise required to be done by the Member Board of Revenue was ordered to be done by this Court which has been done. Therefore, this question cannot be re-agitated. The question as to the extent of the entitlement of a tenant to a decree when a share in the Khata is sold and a tenant is not in possession of the entire land of the joint Khata was not examined in the cases of Muhammad Taj (supra) and Khuda Bakhsh (supra). These judgments are, therefore, not applicable to the facts and circumstances of this case. The learned counsel also agitated that this Constitutional petition could not be heard on account of bar of para. 26 of the Land Reforms Regulation, 1972. This contention was also raised and repelled in the earlier round of litigation for the reason that a sub-constitutional legislation could not abridge or take away the Constitutional jurisdiction.
9. Accordingly, this writ petition is disposed of in terms that respondent No,4 will be entitled to a decree to the extent of 31/192 share of 60 Kanals and 14 Marlas. He will also be entitled to the refund of the proportionate sale consideration, No order as to costs.