' This judgment will dispose of the following Writ Petitions Nos:
(1) Naseer Ahmed and others v. The Member, Board of Revenue and others Writ Petition No,1405 of 1983,
(2) Muhammad Ayub and others v. The Member, Board of Revenue and others Writ Petition No,1406 of 1983,
(3) Muhammad Nawaz v. The Member, Board of Revenue and others Writ Petition No,1407 of 1983 and
(4) Nur Khan and others v. The Member, Board of Revenue and others Writ Petition No,1408 of 1983.
' The abovementioned writ petitions have been filed to call in question a consolidated judgment, dated 31-10-1983 passed by Member. Board of Revenue, respondent No,1 in all the four writ petitions.
2. The facts giving rise to the present writ petition are that the petitioners in all the four writ petitions have instituted a suit for pre-emption against the sale of land vide Mutations Nos. 28, 29, 27 and 39 attested on 10-4-1973 and Mutation No,39 attested on 14-7-1974 in the Court of Assistant Commissioner/Collector, Khanewal. The suit was contested by the respected defendant/respondent No,4 and the Collector vide his judgment and decree, dated 16-5-1978 dismissed the same observing that the plaintiffs have not been able to establish their superior right of pre-emption on the basis of tenancy. That feeling aggrieved the plaintiffs filed their separate appeals before the. Additional Commissioner Revenue, Multan who vide judgment, dated 29-8- 1978 accepted the same and decreed the suit in favour of the pre-emptors.
3. That feeling aggrieved respondent No,4 filed revision petition which came up for hearing before the Member, Board of Revenue who vide a consolidated judgment, dated 31-10-1983 set aside the judgment passed by the Additional Commissioner and restored that of the Collector and dismissed the suit of the plaintiffs/petitioners.
4. The learned counsel for the petitioners contended that all the three Courts/respondents Nos.1, 2 and 3 have observed that the petitioners are the tenants of the suit land. Respondents Nos.1 and 3 have observed that the petitioners are co-tenants and they are not in the exclusive possession of the suit land as tenants, therefore, they are not entitled for the decree of possession through pre- emption on the claim of tenancy. The learned counsel further contended that even if the petitioners are co-tenants as observed by the Courts below, even then they are entitled for the decree of pre-emption equal to land in their possession. He relies in case of Fateh Khan v. Abdul Rehman 1983 SCM R 293, Noor Muhammad v. Member, Board of Revenue and 3 others 1985 CLC 571, Muhammad Bakhsh v. Shahid Abbas 1997 M LD 2602 and Khuda Bakhsh v. Mehdi Hassan PLD 1989 Lah.
78.
5. On the other hand the learned counsel for contesting respondent No,4 vehemently opposed the arguments of the learned counsel for the petitioners and supported the judgments passed by the lower forum contending that the plaintiffs/petitioners have not been able to establish their superior right of pre-emption at three stages. He further contended that the decree on the basis of tenancy cannot be passed in favour of the petitioners in view of the dictum laid down in Government of N.- W.F.P. v. Malik Said Kamal PLD 1986 SC 360 in which the Shariat Appellate Bench of the Honourable Supreme Court has declared the right of pre-emption of the tenant under paragraph No,25 of M.L.R.
115 against the injunctions of Islam. He relies in case of Salhoon v. Nazir Ahmed 1996 M LD 1922, Muhammad Akbar and others v. Sher Muhammad and others 1995 M LD 505 and Muhammad Sharif, Member (Judicial-II), Board of Revenue, Punjab, Lahore and others 1998 SCM R 488.
6. I have heard the arguments of the learned counsel for the parties and perused the record.
7. The Collector while dismissing the suit of the plaintiffs/petitioners observed that they were not in exclusive possession as tenants and they were co-tenants with other tenants and the share of the property is not divisable, therefore, the decree cannot be passed in favour of the plaintiffs/petitioners. The Additional Commissioner accepted the appeal of the tenants/plaintiffs and decreed the suit. He observed that the plaintiffs were the tenants of the suit land. The Member, Board of Revenue respondent No,1 had observed that the plaintiffs were not in exclusive possession over the suit land and in fact they were recorded as co-tenants alongwith others.
8. From the scanning of the record and judgment of respondents Nos.1 to 3 it is manifestly clear that the plaintiffs were entered as tenants although co-tenants alongwith others. It has been settled by the High Court that a tenant is entitled to first right of pre-emption in respect of the land sold which comprised in his tenancy. In the case of Noor Muhammad v.. Member, Board of Revenue and 3 others 1985 CLC 571 (supra) Habib Ullah preemptor pre-empted the sale of the land in the Court of Collector on the right of tenancy. In the whole suit land the tenant/pre-emptor was shown to be in possession of five Khasra numbers and he was declared entitled to be substituted for vendors to a corresponding share sold from these Khasra numbers and no more. The same principle was upheld in cases of Fateh Muhammad, Muhammad Bakhsh and Khuda Bakhsh (supras). Respondent No,1 in his judgment had observed that the plaintiffs/petitioners being co- tenants are not entitled for the decree of possession being tenants. This view of the respondents is not correct rather it is contrary to the dictum laid down in cases referred to above by the learned counsel for the petitioners.
9. As to the plea of the learned counsel for the respondents that the decree of pre-emption on the basis of tenancy after 31-7-1986 cannot be passed in view of the dictum laid down in Said Kamal's case. The Honourable Supreme Court in case of Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 had observed that the plaintiffs having failed in the trial forum had, in appeal or other proceedings in a higher forum succeeded in obtaining decree before 31-7-1986 could not be non-suited in the still higher forum including the Supreme Court on the ground that the relevant law had ceased to have effect on 31-7-1986. In the instant case the Additional Commissioner while accepting the appeals of the petitioners against the judgment and decree, dated 29-8-1978 had decreed the suit of the plaintiffs/petitioners. It means that the decree in favour of the petitioners have been passed much prior to the target date i,e, 31-7-1986. This argument was further strengthened by the Supreme Court in case of Bahadur Khan v. Muhammad Yousaf and another 1992 SCM R 2117. In this case the plaintiff had obtained a decree for pre-emption in the trial Court before 31-7-1986 which decree had been set aside by the Appellate Court. This decree of the Appellate Court was challenged further before the higher forum and the appellant defended the decree in his favour before 31-7-1986 and sought its restoration on the basis of pre-existing law and the Honourable Supreme Court had observed that the case would be governed by the Punjab Pre-emption Act, 1913 as if it has not been repealed.
10. As per Khasra Girdawari attached with the writ petitions by the plaintiffs/petitioners they were entered as tenants in Kharif 1978 and Rabi 1979. The Collector in his judgment has stated that the plaintiffs/petitioners were tenants alongwith other co-tenants in crop 1973-74. It reveals that at the time of sale the petitioners were entered in the column of cultivation as tenants though alongwith other co-tenants. They were never ejected from the suit land from the date of sale in question till the date of decree. Thus, petitioner's superior right of pre-emption at all three stages is established on record. Respondent No,1 has not adverted to the above discussed factual and legal aspect of the case and, thus, committed an illegality.
11. In view of the above, I have no hesitation in observing that the judgment and decree passed by respondent No,1 is suffering from illegalities and infirmities, therefore, the impugned judgment of respondent No,1 is declared to have been passed without lawful authority and of no legal effect and judgments and decrees passed by Additional Commissioner are restored.
' Resultantly, these writ petitions are allowed and suits filed by the petitioners are decreed in their favour to the extent of the pre-empted land in their possession. The cases are remanded to the Additional Commissioner who will determine the tenancy/possession over suit land as tenants of each of the plaintiffs and also the price of the land. The plaintiff of each suit would deposit the sale price less the Zar-e-Punjam, if deposited within one month from the date of determination by the Additional Commissioner. In default of deposit of the amount of sale as decreed by the Commissioner the suit shall be deemed to have been dismissed. If the Collector had not directed/ordered the plaintiffs to deposit 1/5th Zar-e-Punjam then the plaintiffs would deposit whole of the amount. He is further directed to decide the matter in the light of this judgment within a period of three months after issuance of notices to the parties from the date of receipt of the copy of the judgment of this Court.