This judgment shall decide Regular Second Appeal No. 910 of 1978 and Regular Second Appeal No. 1036 of 1978 as they involve common questions of law and facts.
2. Respondents Nos. 1 and 2 (appellants in Regular Second Appeal No. 1036 of 1978 hereinafter to be referred to as the vendees) purchased the suit-land by means of registered sale-deeds dated 12- 9-1973 and 26-3-1973 respectively. Ashfaq, appellant (respondent in Regular Second Appeal No. 1036 of 1978 hereinafter to be referred to as the pre-emptor) filed suits for possession of the suits- land by pre-emption. In the plaint it was stated that the said vendees are strangers, whereas the pre-emptor is an owner in the estate and has superior right of pre-emption. It was further stated that the said pre-emptor was a non-occupancy tenant in the suit-land at the time of sale. The suits were contested. The learned trial Court framed issues and recorded evidence of the pre- emptor. The vendees failed to produce any evidence and the same was closed. The pre-emptor, however, in both the cases admitted the ostensible sale price of the land. Consequently, both the suits were decreed vide judgment and decree dated 17-1-1977 and 5-5-1977 respectively. Feeling aggrieved the vendees filed appeals. Both the appeals were heard by Malik Muhammad Ramzan, Additional District Judge-II, Sahiwal, whereas the appeal filed against the judgment and decree, dated 17-1-1977 of the learned trial Court was allowed vide judgment and decree 27-9-1978. The appeal filed against, the judgment and decree, dated 5-5-1997 of the learned trial Court was dismissed vide judgment and decree, dated 6-12-1978. I may state here that vide judgment and decree, dated 27-9-1978 the learned Additional District Judge proceeded to hold that since the pre-emptor had claimed a right of pre-emption on the basis of being a non-occupancy tenant, the suit stood automatically transferred to the Court of Collector on the enforcement of Land Reforms (Amendment)-Ordinance, 1976 and as such the learned Civil Court had no jurisdiction to deal with the matter.
3. Regular Second Appeal No.910 of 1978 has been filed by the pre--emptor while Regular Second Appeal No. 1036 of 1978 has been filed by the said vendees.
4. Learned counsel for the pre-emptor/appellant argues that the judgment and decree of the learned Additional District Judge is contrary to law as the pre-emptor had not based his suit on the right conferred by para.25 of M.L.R.115 alone but had also claimed to be an owner in the estate in one case and being brother of vendor in the other and .In fact the learned trial Court only found pre-emptor to be an owner in the estate and brother of vendor respectively and vendees to be strangers and thus, passed the decree in his favour. Learned counsel for the vendees opposes the appeal filed by the pre-emptor and supports the appeal filed by his client with the argument that upon promulgation of the said Amendment Ordinance, the suits stood transferred to the Court of Collector automatically and as such the Civil Courts had no jurisdiction in the matter. He relies on the case of Muhammad Ramzan and 2 others v. Noor Muhammad and 4 others PLD 1987 Lah. 268.
5. I have gone through the record with the assistance of the learned counsel for the parties. There is no dispute as to the superior right of pre--emption and the amount to be paid to the vendees. The only point raised is the one recorded by me above. I have also gone through the judgment in the case of Muhammad Ramzan and 2 others reproduced by the learned counsel for the vendees. His Lordships had opined in para. 5 of the said report that in cafe of composite nature where the right is claimed both on the ground of tenancy as also on the grounds recognised by the Punjab Pre- emption Act, 1913, the case should be taken to the Collector first because in view of subparagraph
(3) of paragraph 25 of M. L.R.115 the qualification of tenancy supersedes all other qualifications. If the plaintiff fails before the Collector the case should be sent back to the Civil Court for decision on the basis of other qualifications claimed by him because of such a suit was pending before a Civil Court at the time of coming into force of the said Ordinance, it automatically stood transferred to the Collector concerned by virtue of para.25(5) of M.L.R.
115. It was also opined that abandonment of plea of tenancy during the course of appeal would not help the pre-emptor.
6. I have examined the facts of the present case in the light of the said judgment being relied upon by the learned counsel. I find that the suits were filed on 21-3-1974 and 12-9-1974 respectively in the said two R.S.As. I also find that the evidence of the pre-emptor was recorded on 31-3-1975 in Regular Second Appeal No. 910 of 1978. This comprises of documents Exh. P.A. To Exh.P.5 and the statement of one Hakim A.I son of Umar Hayat who stated that the pre-emptor is an owner in the estate and also a tenant in the suit-land. The learned trial Court in its judgment while recording its findings on the issue pertaining to the superior right of pre-emption has not even made a slightest reference to the plea of tenancy and on the other hams has found the pre-emptor to be an owner in the estate.
7. In Regular Second Appeal No. 1036 of 1978 documentary evidence in the form of Exhs. P.1 to P.3 was led on 14-7-1976 on the basis whereof it was held by learned trial Court in its judgment that the pre-emptor is a real brother of vendor and an owner in the estate. In this judgment also under the issue in question there is not even a slightest reference to the plea of tenancy.
8. In view of the said state of affairs on record it stands established that the pre-emptor never pressed the plea of tenancy during the course of trial and it can be safely assumed keeping in view the tenor of the judgment of the learned trial Court that the plea stolid abandoned in both the cases even before promulgation of the said Ordinance. I may here point out that his Lordship while recording the judgment in the said case of Muhammad Ramzan and two others did observe that the case of abandonment of plea of tenancy before coming into force of said Amendment Ordinance would be treated on different touchstone and such a case would not stand transferred to the Collector. This observation has also been made in the same para.5 of the report already referred to by me above.
9. In view of the above facts and circumstances I am not inclined to agree with the learned counsel for the vendees that the claim of the pre--emptor should first be sent to the Court of Collector where he should abandon his plea of tenancy and then should come back to the Civil Court for a trial de novo.
10. Resultantly Regular Second Appeal No.910 of 1978 is allowed. The judgment and decree of the learned Additional District Judge, dated) 27-9-1978 are-set aside and that dated 17-1-1977 of learned trial Court are restored. For the same reasons Regular Second Appeal No. 1036 of 1978 is dismissed. The parties to bear their own costs.