' TANVIR AHMED KHAN, J.---This appeal by leave of the Court is directed against the judgment dated 20-6-1993 of the Lahore High Court, Bahawalpur Bench, Bahawalpur, passed in R.S.A. No, 76 of 1985, partly accepting the appeal of the respondents, whereby pre-emption decree passed in favour of the appellants was made subject to order/decree passed on 20-3-1978 by the Assistant Commissioner/Collector, Chishtian, in favour of Muhammad Yousaf, respondent No,1.
2. Briefly stated the facts of the case are that one, Karim Bakhsh, sold his land measuring 50 Kanals to his daughter-in-law; Mst. Nemat Bibi (respondent No,2) through a registered sale-deed dated 1- 2-1977. Umar Din, the predecesors-in-interest of the appellants, filed a suit for possession through pre-emption against respondent No,2 on 31-1-1978 claiming himself to be a collateral of said Karim Bakhsh, the vendor. He also averred that the suit-land was actually sold for Rs,12,500, which was its market price, and the sum of Rs,36,000 had been fictitiously shown in the sale-deed just to defeat his superior right of pre-emption. Muhammad Yousaf, respondent No,1 a real brother of Mst. Nemat Bibi, filed a suit for pre-emption in the Court of Assistant Commissioner/Collector, Chishtian, claiming superior right on the basis of his tenancy as envisaged under Paragraph 25(3)(d) of the Land Reforms Regulation. 1972 (hereinafter referred to as the 'Regulation). Mst. Nemat Bibi filed a conceding statement admitting the claim of Muhammad Yousaf, respondent No,1. The appellants' predecessor-ininterest, Umar Din, also filed an application before the Assistant Commissioner/Collector, Chishtian, for impleadment as party. Through an order dated 20-3-1978 the Assistant Commissioner/Collector, Chishtian, decreed the suit of Muhammad Yousaf while dismissing the application of impleadment filed by Umar Din.
3. Umar Din, predecessor-in-interest of the.Appellants, thereafter got his suit amended and impleaded Muhammad Yousaf as party as well. He also assailed in the amended suit the judgment and decree dated 20-3-1978 passed. By the Assistant Commissioner/Collector, Chishtian.
4. Both the respondents/defendants filed their written statement denying the claim of said Umar Din. The Civil Judge 1st Class, Chishtain, decreed the suit and the appeal filed by Muhammad Yousaf was dismissed by the Additional District Judge, Bahawalnagar, as per his judgment dated 25-6-1985. Thereafter, Muhammad Yousaf preferred R.S.A. No,76 of 1985 in the. Lahore High Court, Bahawalpur Bench, Bahawalpur, which was accepted by a learned Single Judge through his judgment dated 20-6-1993. Hence this appeal with leave of the Court.
5. Learned counsel for the appellants has stated that respondent No,1, Muhammad Yousaf, as is reflected from the evidence, was inducted as a tenant in Rabi 1977 after the sale, as such, he did not qualify the mandatory condition for exercise of jurisdiction as required under paragraph 25(3)
(d) of the Regulation. He has also stated at the Bar that the decree dated 20-3-1978 passed by the Assistant Commissioner/Collector, Chishtian, was secured by respondent No,1 through collusion, as such, no illegality was committed by the trial Court as well as first appellate Court in setting aside the same. The impugned judgment of the Lahore High Court in the circumstances of this case cannot be sustained.
6. On the other hand, Dr. Qazi Mohyuddin, learned counsel appearing for the respondents, has supported the impugned judgment by staying that the respondents have been recorded as tenants of the disputed land from Kharif 1976, which aspect was not properly appreciated by the trial Court as well as first appellate Court. He has also pointed out that the appellants' predecessor-in-interest Umar Din filed an application for impleadment as party before the Assistant Commissioner/Collector, Chishtian, in the preemption suit filed by the respondents which was rejected vide his order dated 20-3-1978 while decreeing the suit for possession through pre- emption on the basis of tenancy of respondents. The appellants' predecessor-in-interest did not agitate the rejection of impleadment application any further nor he filed any appeal against the decree as envisaged under sub-paragraph (6) of paragraph 25 of the Regulation. The same having attained finality could not have been interfered with by the trial Court. A further argument has been advanced by him that the appellants' predecessor-in-interest did not, avail the remedy provided under section 12(2) of C.P.C. Before the Collector, Chihtian, as such no exception can be taken to the impugned judgment of the Lahore High Court restoring the decree of pre-emption dated 20-3-1978 passed by the Collector, Chishtian, in favour of the respondents on the basis of tenancy.
7. We have considered the contentions raised by both the learned counsel and have also perused the documents available on record. It is not denied that the Collector while deciding suit for pre- emption on the basis of tenancy, according to paragraph 25(3)(d) of the Regulation, acts as a civil Court, Reference in this regard has been made to sub-paragraph (8) of paragraph 25 of the Regulation which provides as under-- "(8) For the purposes of this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a civil Court and shall have all the powers of a civil Court under any law for the time being in force and the final order passed in such suits shall be deemed to be a decree of a civil Court and shall be executed as such."
8. It is not denied that an appeal has been provided under paragraph 25(6) of the Regulation before the Commissioner against an order passed by the Collector in a pre-emption suit based upon tenancy. However, the appellants predecessor-in-interest did not take any exception to the said decree in the hierarchy provided under paragraph 25 of the Regulation and instead took exception to the same before the civil Court. The pre-emption suit filed by the respondents was exclusively triable by the Collector and could not have been put to scrutiny in the civil Court.
Reliance in this respect is placed on the case of Yaseen v. Khan Muhammad and another (1987 SCMR 944) where it was held as under:-- ' "....Decree from Revenue Forum not having been challenged in High Court by an independent proceedings, neither civil Court, nor District Court and High Court in proceedings arising out of civil suit filed by petitioner, could set aside judgment and decree passed in favour of respondent in revenue hierarchy...."
9.Having held that the Collector was acting as Civil Court while -deciding suit for possession through pre-emption on the basis of tenancy, as such, he was also vested with the jurisdiction to re-trace and re-call his order if obtained on the basis of fraud and misrepresentation under section 12(2) of the Code of Civil Procedure. The appellants' predecessor-in-interest did not avail this remedy provided to him under the law. Furthermore, right of pre-emption granted to the tenants under paragraph 25 of the Regulation is superior in nature and in case of clash, the tenants' right has to prevail. Reference in this behalf made to paragraph 3 of the Regulation would be apt which has given it an overriding effect. In this regard reference to the following observations made in the case of Ali Hassan and 2 others v. Sardar Khan and others (PLD 1990 Lahore 216) would be pertinent:-- "6. The next question which arises for determination is whether any party in the suit before a civil Court could challenge the validity and legality of order passed by Collector decreeing the suit of tenant to pre-empt the sale or a civil Court in the presence of such a decree in favour of tenant could pass unconditional decree in favour of rival pre-emptor who claimed right of pre-emption on the ground of collateralship and co-sharership. Para. 3 of Land Reforms Regulation, 1972 enacts that the provisions of the said Regulation and any other made therein shall have effect notwithstanding anything to the contrary in any other law or in any order or decree of a Court or Tribunal or other authority etc. Etc. In view of these provisions of law it can safely be held that in a case where there is rivalry between the order of Collector decreeing the, suit of the tenant and decree of Civil Court of general jurisdcition, the order of Collector is to take effect. It is not permissible in view of these express provisions of law giving overriding effect to an order of Collector passed under the said regulation, to allow any person to challenge the validity or order of the Collector before a civil Court or in any other proceedings except by filing appeal or revision as provided in para. 25(6), (7) of the Land Reforms Regulation, 1972 as amended by Act XLVIII of 1976."
' Reference is also made to an unreported judgment of this Court in the case of Shah Muhammad etc. v. The Member (Judicial-I) Board of Revenue Punjab etc. (Civil Petition for Leave to Appeal No,125-L of 1995), decided on 6-12-1995, wherein the learned Judges held that right of pre-emption granted to tenants is the superior most and in case of dash, the tenants' right was to prevail. The relevant observation is as under:-- "2. It was ..Urged before us that at the time of the sale viz. 7th of June, 1974, respondents did not have the right to pre-empt the sale, therefore, the suit could not have been decreed. This contention was also raised before a learned single Judge of the Lahore High Court, and was rightly repelled on the ground that tenants were granted the right of pre-emption by M.L.R. 115 enforced in 1972. It was also urged before us that the decree for possession through pre-emption passed in favour of petitioners, dated 26th of August, 1979 remained as unchallenged, therefore, it attained the finality. Facts of the matter is that the decree in favour of respondents Lal etc. Was prior in time, inasmuch as, the Collector for the first time had decreed the suit on 23rd of April, 1978. It is pertinent to mention that right of pre-emption granted to tenants is the superior most, and in case of clash, tenants' right has to prevail.
10. Resultantly, for what has, been stated above, the instant appeal having no substance is dismissed leaving the parties to bear their own costs.