1. CH. IJAZ AHMAD, J.--- Brief facts out of which the present writ petition arises are that petitioners purchased and measuring 20 kanals from Khudah Bakhsh brother of respondent No. 1. Respondent No. 1 and others being aggrieved filed a suit for preemption against the petitioners before the competent Civil Court. The Civil Court decreed the suit vide judgment and decree dated 12.12.1974.
2. Respondent No. 1 approached the revenue authorities in 1986 to get the mutation entered and sanction to give effect to the decree to the Mutation No. 180 was entered by the revenue officer but was rejected by the Tehsildar/Assistant Collector Ist Grade vide order dated 19.6.1986. Respondent No. 1 being aggrieved preferred appeal to the Assistant Collector who up-hold the order of the Tehsildar. Subsequently, respondent No. 1 filed appeal before the Addl. Commissioner Revenue who set aside the orders of the Tehsildar and Assistant Collector vide order dated 16.5.1987. Petitioners bring aggrieved filed revision petition before the Member Board of Revenue who dismissed the same vide order dated 20.2.1990. Hence the present wit petition.
2. Learned counsel for the petitioners submits that after the decree . An agreement was executed between the respondent No. 1 and petitioner qua the .Land in question. Respondent No. 1 did not file execution petition against the petitioners on the basis of the aforesaid agreement to sell. He further submits that agreement to sell was witnessed by the brothers of respondent No. 1 namely Khudah Bakhsh and Khadim Hussain. He further submits that respondent No. 1 estopped to approach the revenue authorities for sanction of mutation in her favour on the basis of the aforesaid decree. He further submits that Addl. Commissioner revenue set aside the concurrent finding of fact of the Tribunals below. Therefore, the order of the Addl. Commissioner Revenue is not sustainable in the eyes of law. He further submits that respondent No. 1 has filed a time-barred execution petition before the competent Court. He further submits that petitioner has also filed a civil suit in which the stay has already been granted to restrain the respondents to get the mutation sanction in her favour: Learned Addl. Commissioner and learned Member Board of Revenue did not consider this aspect of the case.
3. I have given my anxious consideration to the contentions of the learned counsel for the petitioner and perused the record myself. It is admitted fact that pre-emption decree was passed by the competent Court in favour of respondent No. 1 on 12.12.1974. Respondent No. 1 had deposited the amount in terms of the decree of the Civil Court. It is settled principle of law that the pre-emptor becomes owners of the property from the date of payment of the payment of the pre-emption on money as per principle laid down by the superior Courts in the following judgments:- PLD 1984 S.C. 334( Akram 's case).
3. 1992 SCMR 241 (Maulvi Abdul Qayyum's case)
4. 1988 SCMR 1016 (Dr. Aliaz Muhammad Mnn's case).
5. It is also settled principle of law that even though execution of the decree has not been applied for or the money have not been withdrawn by the vendee. Even then the decree remained in the field as per principle laid down by the Hon'ble Supreme Court in 1988 SCMR 1016 (Dr. Niaz Muhammad Mnn's case). In the preemption decree question of filing execution petition after prescribed period has no force as per principle laid down by the superior Courts in the following judgments:- 1972 SCMR 322 (Ali Ahmad's case)
6. PLD 1974 Note 56 (Faqir Muhammad's case) 1961 CLC 1202 (Allah Wasaya's case) PLD 1973 Lahore 207 (Ali Ahmad's case).
7. The impugned order also reveals that the petitioners had withdrawn the money. Therefore, petitioners are estopped to raise this plea that the respondent No. 1 has filed time-barred execution petition on the well-known principal of estoppel and waiver as per principle laid down in Ghulam Rasool's case (PLD 1971 S.C. 376). The contention 'raised by the learned counsel for the petitioners were not raised before the learned Member Board of Revenue as the order of the learned Member Board of Revenue did not contain a single sentence about the agreement to sell executed between the petitioner and respondent No. 1 and the respondent filed time-barred execution petition. In the circumstances, the writ petition is not maintainable. Even otherwise the Tribunal below have given concurrent finding of fact against the petitioners,. Therefore, writ petition is not maintainable as per principle laid down by the Hon'ble Supreme Court in the following judgments:- 1974 SCMR 279 (Khuda Bakhsh's case)
8. PLD 1981 S.C. 246 (Muhammad Sharif's case). PLD 1989 S.C. 522 (Abdul Rehman's Bajwa's case).