SYED JAMSHED ALI, J. - This is a vendees' Constitutional petition arising out of a pre-emption matter.
2. Land measuring 35 Kanals and 2 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 in the disputed land (35 Kanals. 2 Marlas) was sold to the petitioner for a consideration of Rs.50,000.00. Respondent No. 4, claiming to be a tenant on the suit land filed a suit for 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 5.4.1981 for a consideration of Rs.50,000.00. Against this order, both the parties filed appeals before the learned Additional Commissioner.
3. The pre-emptor disputed the sale consideration and asserted that it was Rs.30,000.00 and not Rs.50,000.00 while the vendee assailed the decree. The learned Addl. Commissioner, vide his order dated 7.2.1982, held that respondent No. 4 as 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 Versus Khalil Khan and others (PLD 1979 S.C. 821).
4. Respondent No. 4 invoked the revisional jurisdiction of the learned Member, Board of Revenue who found that unless the extent of the deficiency in 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 Addl. 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 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. Learned counsel appearing for the petitioner has contended that 31/192 share was sold from khata No. 83 and respondent No. 4 was not a tenant on the entire land of the said khata to qualify tor the decree for the land sold i.e. 35 Kanals, 2 Marlas, and while decreeing the suit the judgment of Hon'ble Supreme Court in Fateh' Khan Versus Abdur Rehman (1983 S.C.M.R. 293) and of this Court in Noor Muhammad Versus M.B.R, and three others (1995 CLC 571) have been disregarded.
According to him respondent No. 4 was entitled to the decree to the extent of 31/192 share of the land of Khata No. 83 comprised in his tenancy.
6. On the other hand, learned counsel for respondent No. 4 has vehemently contended that this Constitutional petition is not maintainable on account of the bar contemplated by paragraph 26 of the Land Reforms Regulation, 1972. He also contended that the question sought to be raised before this Court was not raised in any of the Courts below and, therefore, could not be agitated for the first time in the Constitutional jurisdiction.
7. I have heard learned counsel for the parties and examined the record. According to the khasra Girdawari respondent No. 4 was not a tenant on the entire land of khata No. 83 measuring 217 Kanals, 5 Marlas and in accordance with rule laid down in Fateh Khan's case supra and Noor Muhammad's case supra, respondent No. 4 was only entitled to 31/192 share of the land comprised in his tenancy.
8. The contentions of learned counsel for respondent No. 4 have no force. As to the first contention regarding bar of para 26 of the Regulation, suffice it to say, that a sub-Constitutional legislation cannot take away the jurisdiction under Article 199 of the Constitutions. As to the second contention (the quantum of land to which respondent No. 4 was entitled to under paragraph 25 of the Law Reforms Regulation), suffice it to say that it is a question of law going to the root of the case and could be raised at any stage of the proceedings. Reference may be made to Haji Abdullah Khan and others Versus Nisur Muhammad Khan (PLD 1965 S.C. 790). In fact the writ petition was admitted to consider this question.
9. The impugned judgments rendered in the case are clearly in disregard of a binding precedent and therefore, cannot be sustained.
10. In this view of the matter, this petition is allowed. The case is remanded to the learned Member (Revenue) Board of Revenue who will determine the extent to which respondent No. 4 is entitled to the decree keeping in view the rule laid down in Fateh Khan's case supra and will determine the proportionate price. The case is being remitted to the learned Member Board of Revenue on this issue alone. No other issue will be open to examination by him. The parties are .Left to bear their on costs.