This Constitutional petition has been filed by the petitioners to challenge the judgments dated 20- 1-1998 and 26-8-1981 passed by the respondents Nos. 1 and 2 respectively, whereby, setting aside the judgment and decree dated 8-11-1980 passed by the A.C./Collector Alipur, decreeing the suit of the plaintiffs/petitioners was set aside.
2. Briefly stated the facts of the case are that Abdul Ghafoor and Muhammad Yar, plaintiffs/petitioners instituted a suit for possession through pre-emption on the sale of land measuring 46 Kanals and 16 Marlas situated in Mauza Wains, Tehsil Alipur, District Muzaffargarh.
The suit was contested by the respondents Nos.3 to 5 who filed their written statement, raising some preliminary objections to the jurisdiction of the Court and non-deposit of full amount of Zar- e-Panjum. On the basis of the pleadings of the parties, learned Trial Court framed the following issues:--
(1) Whether the right of pre-emption exercised by plaintiff is superior? OPP
(2) Whether a sum of Rs.1,70,000 assessed and paid bona fide? OPP.
(3) What was the market value of the suit land at the time of sale? OPP
(4) Whether the suit in present form is not maintained? OPD
(5) Whether Court-fee has not been properly assessed and affixed in accordance with Revenue Record and Schedule of Produce? OPD
(6) Whether this Court has no jurisdiction to decide the present suit? OPD.
(7) Whether the suit of plaintiff is partial? OPD
(8) Whether 1/5th deposited loss? OPD.
(9) Whether defendants are entitled to receive expenditure on account of registration etc? OPD
(10) Relief.
The Court after recording and appreciating the evidence of the parties pro and contra, decreed the suit vide judgment and decree, dated 8-11-1980, declaring the superior rights of the plaintiffs/petitioners. Feeling aggrieved, the respondents Nos.3 to 5 against the judgment and decree dated 8-11-1980 passed by the A.C./Collector, preferred an appeal before respondent No-2 who vide judgment dated 26-8-1981 accepted the same, reversed the findings of the Trial Court and dismissed the suit of the plaintiffs/petitioners (herein). Feeling aggrieved thereby, the petitioners filed a revision petition before Member Board of Revenue/respondent No. 1 against the judgment of Additional Commissioner dated 26-8-1981 and the MBR vide judgment dated 16-4- 1983 partly accepted the revision petition to the extent of Khasra No. 10/11 and to the extent of rest of the land dismissed the revision petition. Thereafter, the petitioners filed a review petition before the MBR on 21-5-1983 which was dismissed vide order, dated 14-1-1985. The petitioners, then, challenged the judgment dated 16-4-1983 and order, dated 14-1-1985 through a Writ Petition No.338 of 1985 in this Court and the respondents Nos.2 to 5 also challenged the judgment dated 16- 4-1983 through a Writ Petition No.689 of 1983. Both the writ petitions were disposed of vide consolidated judgment dated 29-11-1994 and the High Court, remanded the case to respondent No.1 for decision afresh. After remand, respondent No.1 vide judgment dated 20-1-1998 dismissed the revision petition and maintained the judgment dated 26-8-1981, passed by the Additional Commissioner, dismissing the suit of the plaintiff/ petitioners.
3. Learned counsel for the petitioners contended that the Additional Commissioner had dismissed the suit of the plaintiffs/petitioners on the basis of principle of sinker. This objection was not taken by the respondents in their written statement nor the Court framed any issue to that extent and, therefore, the parties were not afforded an opportunity to produce the evidence on this point. He further contended that one of the plaintiffs/petitioners namely; Muhammad Yar, died during the pendency of the revision petition. Learned counsel further submitted that after the remand of the case by the High Court and without bringing on record his legal heirs the impugned judgment has been passed by the Member, Board of Revenue. He further contended that previously the Board of Revenue partly decreed the suit of the petitioners to the extent of Khasra No.10/11 and this partly decree was never set aside by the respondent No.1 while passing the impugned judgment and it holds good. He further submitted that the Additional Commissioner had also made a ground for dismissal of the suit of the petitioners that a Khasra No.10/11 was not included in the plaint and it was a partial pre-emption. One of the respondents had got recorded a case F.I.R. No.224 of 1982 at Police Station Jattoi under section 379, P.P.C. Against the petitioners wherein he has not mentioned the Khasra Number so it was included in the suit.
4. On the other hand, learned counsel appearing on behalf of the respondents Nos. l and 2 and on behalf of respondent No. 3 to 5 have vehemently opposed the arguments of the learned counsel for the petitioners, contending that the revision petition filed by the petitioners before the MBR was filed against the judgment and not against the decree and without challenging the decree, the revision was not competent. Relied on the cases of Faqir Muhammad v. Province of Punjab (PLD 1993 Lahore 439). He continued that in this writ petition the petitioners have not challenged the impugned decree passed by the Collector, Additional Commissioner and the MBR, hence, this petition is incompetent and not maintainable in law. He further contended that petitioners have challenged the revisional order of respondent No.1 against which no writ is maintainable because no writ lies against the revisional order. He relied on the case of Muhammad Khan v. Mst. Ghulam Fatimah (1991 SCMR 970). Learned counsel next contended that only two remedies were available to the petitioners, one, by filing of review petition before respondent No.1/MBR and, other, by filing of revision petition before Federal Government or any competent authority authorized by the Government under para 29 MLR 115 of 1972, which were not availed of by them. Hence, this writ petition is not maintainable. In this context, learned counsel relied on the case of Adam Jee Insurance Company v. Pakistan (1993 SCMR 1798). Learned counsel next submitted that in Constitutional jurisdiction the petitioners have to establish on record that the authority had exceeded the jurisdiction by passing the impugned order and this point was not urged by the leaned counsel for the petitioners in his arguments. He further contended that on exercise of wrong jurisdiction, writ does not lie. Relied on Ch. Muhammad Ismail v. Fazal Zada, Civil Judge (PLD 1996 SC 246). Learned counsel further submitted that respondents Nos. l and 2 had given its findings on questions of fact and if questions of fact is involved in the matter, writ is not competent. Relied on the cases of Muhammad Younas Khan v. Government of N.W.F.P. (1993 SCMR 618). He further contended that the respondents have raised preliminary Objection No.1 in their written statement where they have written that the suit is not maintainable in the present form and liable to be dismissed. He contended that the pre-emptor, Muhammad Yar, has the right to exercise. His right of pre-emption and the other pre-emptor Abdul Ghafoor son of Muhammad Yar has no right equal to the respondent so he could not file the suit for pre-emption and hence, rule of sinker was a hurdle in the way of the petitioners and it was rightly applied by the Additional Commissioner He further argued that during the pendency of the revision petition before MBR, Muhammad Yar, plaintiff/petitioner has died and his legal hers were not brought on record, it will not effect the merits of the case because Order 21, Rule 3, C.P.C. Has been amended by haw Reforms Ordinance, 1972. In this respect, learned counsel has placed reliance on the case of Muhammad Sadiq v.
Muhammad Sakhi (PLD 1989 SC 755). Learned counsel further contended that the judgments dated 16-4-1983 and 14-1-1985 have been set aside by the High Court in writ petitions filed by the parties and these were not in the field. Learned counsel for the respondents lastly contended that objection of sinker was taken by the respondent No.1 in their written statement therefore, the argument of the learned counsel for the petitioners is not tenable on legal and factual plane.
5. I have heard both sides at length and gone through the record carefully. The suit for pre-emption was filed by Muhammad Yar son of Bakhshan and Abdul Ghafoor son of Muhammad Yar. As per record, copies of Khasra Girdawari, Exh. D.3 and P.9 and P.10 produced by the pre---emptor, Muhammad Yar was the cultivator of some Khesra numbers while Abdul Ghafoor was not the cultivator of any of the Khasra number including the land in dispute. The superior right of pre- emption was available only to the persons who were the tenant or cultivator of the land which was the subject-matter of the suit. Abdul Ghafoor, pre-emptor, was not the tenant of the land so he could not exercise the right of pre-emption. It is a settled principle of law that if a person having a superior right of pre-emption associated with him a stranger he will loose his own right. There was Issue No.1 that whether the right of pre-emption exercised by the plaintiffs is superior. It was the obligation of the plaintiffs to establish their superior right of pre-emption if they have failed to prove the superior right of pre-emption, both the plaintiffs/petitioners then cannot blame the Court or the respondents for their fault. The Issue No.1 was properly framed by the Trial Court, therefore, this argument of the learned counsel for the petitioners that respondents have not raised any objection to the extent of doctrine of sinker has no force, hence, if repelled.
6. As to the plea that during the penedency of the revision petition one of the petitioners Muhammad Yar has died and his legal heirs were not impleaded on record and without making them a party as petitioner, the impugned judgment has been passed by the respondent No.1/MBR., suffice it to observe that the impugned order, dated 20-1-1998 was passed after the remand of the case by the High Court when the previous orders by the Board of Revenue dated 16-4-1983 and 14- 1-1985 were passed. Muhammad Yar petitioner was alive and he died after the remand of the case by the High Court. Firstly, it was the obligation of the other petitioner (Abdul Ghafoor) to bring on record the legal heirs of Muhammad Yar, secondly, it was the duty of the L.Rs. , of Muhammad Yar to come forward and become a party in the revision petition, thirdly, Abdul Ghafoor, other petitioner was one of the legal heirs of Muhammad Yar, deceased, therefore, this cannot be said that the order has been passed without impleading the L.Rs.Of the deceased/Muhammad Yar. It was a common interest of Muhammad Yar and Abdul Ghafoor and Abdul Ghafoor had contested the revision petition so no prejudice was caused to Abdul Ghafoor and other L.Rs.Of the deceased by passing of the impugned order by the respondent No.1. The Order 22, Rule 3, C.P.C. Has already been amended by the Law Reforms Ordinance, 1972, and if any of the petitioners, dies it will not abate the revision petition and the order can be passed even without impleading the L.Rs. , of the deceased/Muhammad Yar, as held in the case of Muhammad Sadiq noted (supra). As to this argument of the learned counsel for the petitioner is concerned, it is suffice to hold that no prejudice has been caused to the petitioner, hence, this argument is devoid of force and is not sustainable in law.
7. The next contention of the learned counsel for the petitioners is that before remand of the case, the Board of Revenue has partly decreed the suit of the petitioners to the extent of Khasra No. 10/11 and this finding was not set aside by the impugned order passed by the MBR. The judgment dated 16-4-1983 passed by the Member Board of Revenue was challenged through Writ Petitions Nos.338 of 1985 and 689 of 1983. Both the writ petitions were decided by a consolidated judgment by this Court, setting aside the judgments dated 16-4-1983 and 14-1-1985 and it was not in the field, therefore, there was no need to set aside the partly decree in favour of the petitioners through the impugned judgment passed by the respondent No.1, hence, this argument of the learned counsel for the petitioner has no force and is repelled.
8. The petitioners have filed the suit for pre-emption. It was their duty to include all the Khasra numbers in the suit of the land sold and if any of the Khasra number was not included in the suit it was then fault and not the fault of the respondents or the Court and a pre-emptor who misses some portion of the property to pre-empt, certainly the suit would be hit by the principle of partial pre-emption. The Additional Commissioner observing the suit as partial pre-emption had committed no illegality.
9. The petitioners have challenged the judgments of the Additional Commissioner as well as of the MBR passed in a suit for possession through pre-emption. The suit of the plaintiffs/petitioners was decreed by the Collector vide judgment and decree dated 8-11-1980 which was set aside by the judgment dated 26-8-1981 passed by the Additional Commissioner and the petitioners preferred only a revision petition against the judgment of the Additional Commissioner. They have not challenged the decree passed by the Additional Commissioner. In such suits, the appeal or revision lies against the decree and not against the judgment. The petitioners have not annexed the copy to the order sheet with the revision petition and, thus, their revision petition was not competent before the MBR because ,the judgment and decree of the Trial Court was set aside by the judgment and decree of the appellate Court/Additional Commissioner which was liable to be challenged before the Member Board of Revenue.
10. I would like to explain the important point of "writ jurisdiction".' involved in the case in hand. The writ jurisdiction of this Court can only be invoked against the order passed in exercise of excess jurisdiction and not against the wrong exercise of jurisdiction. At the .Most the MBR has the jurisdiction to accept or reject the revision petition even though in exercise of wrong jurisdiction but he has not exceeded the jurisdiction nor the impugned order has been passed without jurisdiction as held by the Supreme Court in case of Ch. Muhammad I.-nail noted (supra). Furthermore, the instant writ petition has been filed against the revisional order of the MBR which is not maintainable as observed in case of Muhammad Khan v. Fatimah (1991 SCMR 970) wherein Hon'ble Supreme Court has held that writ petition is not maintainable against the order passed in revision. The alternate remedy was available to the petitioners, one; by filing of the review petition against the order, dated 20-1-1998 or by filing of a revision petition before the Government or any other authority authorized by the Government under para. 29 of the MLR 115 of 1972.
11. In view of the above discussion and relying on the cases referred to above there is no force in the writ petition which is dismissed in limine.