SYED DEEDAR HUSSAIN SHAH, J.-- This appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 22.12.1993, passed in FAO No. 111/82.
2. The appellant filed a suit for possession through pre- emption against the respondent regarding land measuring 1 kanal, 2 merles, situated in Chak No. 2/JB, Tehsil and District Faisalabad. The disputed land had been alienated through a registered sale-deed dated 4.3.1978 in favour of the respondent by the brothers and sisters of the appellant/plaintiff. The appellant claimed preferential right on the basis of his co-sharership in the Khata. In the written statement the respondent took the plea that the actual sale -deed had taken place in the year 1970 when the agreement of sale and receipt regarding payment of total consideration had been executed by the vendor in favour of the vendee. It was asserted that the Ahata in dispute, being in the colony area, the Punjab Pre-emption Act was not in force to the area in that year. Five issues were framed. Issues Nos. 1 and 2 only were adjudicated upon which related to the land being not preemptable and the suit being barred by limitation as claimed in the preliminary objections in the written statement. Vide judgment and decree dated 4.10.1981 the learned Civil Judge dismissed the suit. However, the appeal preferred by the appellant was accepted by the learned District Judge, Faisalabad, vide his judgment dated 23.5.1982, whereby the case was remanded to the Trial Court for a fresh decision in accordance with law; the relevant paras of the judgment read as under:-- "I am of the view that issues Nos. 1 and 2 were wrongly decided. I would, therefore, reverse the learned Civil Judge's finding on both these issues and decide them in the affirmative. It is admitted that the plaintiff is a brother of the vendors and has, therefore, a superior right of pre-emption, as against the defendant, who is not shown to be in any way related to the vendors.
The learned Civil Judge gave no finding on issue No. 4, which was whether the defendant had effected improvements and if so, what their value was.
I, therefore, accept the appeal and set aside the judgment and decree appealed from but as the learned Civil Judge has not given finding on issue No. 4.1 would send the case back to the learned Civil Judge for deciding that issue. The parties shall appear before the learned Civil Judge on 31.5.1982. The parties are left to bear their own costs."
3. Feeling aggrieved with the aforesaid judgment of the District Judge, the respondent filed an appeal in the Lahore High Court, which was allowed vide impugned judgment dated 22.12.1993; the relevant portion whereof reads as under:-- Admittedly, the appellant's suit was never decreed at the counsel of the respondents appears to be genuine, in spite of the notices sent to the petitioners directly on various dates and the petitioners did not enter appearance--In this view of the matter there is no live issue existed between the parties and the writ petition has become infructuous--Petition become infructuous.
(Paras 2,3)
For the Appellant: Nemo.
For the Respondent: Ch. Aamer Rehman, Advocate.
Date of hearing: 2nd November, 2000.
CH. IJAZ AHMAD, J.--- The brief facts out of which the present writ petition arises are that the petitioners claim themselves to be the owners of the land in question and claim that respondent No. 1 was their tenant at will, under the petitioners but the respondent stopped to make payment of the produce share to the petitioners. The petitioners filed an ejectment suit against respondent No. 1 before the Assistant Collector First Grade, Gujranwala on the ground that respondent No. 1 had not given produce share to the petitioners. The Assistant Collector First Grade accepted the ejectment petition vide order dated 1.4.1981. Respondent No. 1 being aggrieved filed appeal before the Assistant Commissioner/Collector, Gujranwala who dismissed the same on 19.1.1982. The respondent No. 1 being aggrieved filed revision petition under Section 84 of the Punjab Tenancy Act before Addl. Commissioner Revenue, Gujranwala, who accepted the same vide order dated 6.4.1983. The petitioners being aggrieved filed revision petition before the Member, Board of Revenue who dismissed the same that the revision petition is not maintainable, hence the present writ petition.
2. The teamed counsel of the respondents submits that respondent No. 1 filed a suit for declaration before the Civil Judge at Gujranwala on the basis of adverse possession who accepted the same vide judgment and decree dated 18.10.1984. Copy of the same is placed on record. He further submits that petitioners filed suit for the recovery of the share produce. The petitioners also filed a suit against respondent No. 1 before the Assistant Commissioner, Gujranwala which was decreed in favour of the petitioners vide judgment and decree dated 6.4.1983. On the basis of this decree the petitioners presented, suit for ejectment. This decree of the Assistant Collector dated 6.4.1983 was reversed by the Member Board of Revenue vide order dated 16.9.1985. Copy of the same is placed on record. The learned counsel of the respondents submits that on account of subsequent events this writ petition has become infructuous.
3. The statement of the learned counsel of the respondents appears to be genuine, in spite of the notices sent to the petitioners directly on various dates and the petitioners did not enter appearance. In this view of the matter there is no live issue existed between the parties and the writ petition has become infructuous. Disposed of.