MUHAMMAD RASHID Versus MEMBER (REVENUE), BOARD OF REVENUE, PUNJAB

1. Brief facts out of which the present writ petition arises are that respondent filed pre‑emption suit against the petitioners before the Civil Judge Faisalabad. The trial Court decreed the suit of respondent vide judgment and decree, dated 20‑6‑1983. Petitioner being aggrieved filed appeal before the Additional District Judge Faisalabad who dismissed the same vide judgment and decree, dated 30‑6‑1984, Petitioners being aggrieved filed R.S.A. before this Court which was also dismissed vide judgment, dated 30‑6‑1984. Thereafter, the petitioner filed C.P. No.919 of 1984 before the Hon'ble Supreme Court which was also dismissed vide judgment, dated 29‑5‑1988. Respondent filed suit for recovery of Rs.9,421.95 for the purchase of produce for the Kharif 1983 before the Tehsildar on 13‑2‑1984 who decreed the suit vide order, dated 15‑7‑1984. Petitioners being aggrieved filed appeal before the Assistant Commissioner/Collector who also dismissed the same vide order, dated 16‑6‑1985. Thereafter, petitioners filed revision petition before the Additional Commissioner (Revenue) who also dismissed the same vide order, dated 2‑11‑1985. Thereafter, petitioners filed 2nd revision petition before the Member Board of Revenue who also dismissed the same vide order, dated 23‑4‑1986. Learned counsel for the petitioners submits that application filed by the respondents before the tehsildar was not competent at that time appeal was pending adjudication before the Additional District Judge Faisalabad filed by the petitioner who suspended the operation of the decree, dated 20‑6‑1983 of the trial Court. He further submits that even at the time of deciding the 2nd revision by M.B.R. the R.S.A. and C.P. No.919 of 1988 filed by the petitioner were pending adjudication in which the operation of the impugned judgments of the Court below were suspended. He further submits that there was no relationship of landlord and tenant exists between the parties unless and until the matter has been finally decided up to the apex Court in the pre‑emption suit. He further submits that both the Courts below have wrongly decided the case of the petitioner. In support of his contention he relied upon the following judgments:‑‑

2. AIR 1930 Lahore 273 (Lachman Singh's case) and

3. PLD 1964 SC 520 (F.A. Khan's case)

2. Learned counsel for the respondents submits that writ petition is not maintainable as the tribunals below have decided concurrently against the petitioners. He further submits that Member Board of Revenue has dismissed the revision petition by observing that the postponement of the execution of the decree has not effected the right bf the ownership of the respondent which accrued to them on the date of the decree.

3. Learned counsel for the petitioners in rebuttal submits that decree was not final as the operation of the same was suspended and the respondent have not filed any execution petition before the trial Court. Therefore, judgments of both the Courts below are result of misreading or non‑reading of the record.

4. I have given my anxious consideration to the contentions of the learned counsel for the parties and perused the record myself. It is admitted fact that pre‑emption decree was passed against the petitioners on 20‑6‑1983. Petitioners being aggrieved by the aforesaid judgment filed appeal before the Additional District Judge who suspended the operation of the impugned decree vide order, dated 30‑7‑1983 and the respondent filed application for recovery of amount Rs.9,421.95 before the Tehsildar for the purchase of Kharif in the B year 1983. The application filed by the respondent was not competent and the orders passed in the Revenue side by the tribunals were not sustainable in the eyes of law on the ground that the petitioners first appeal, R,S.A. and C.P. were pending adjudication before the competent Court. The operation of the impugned judgment was suspended. In arriving to this conclusion I am fortified by the law laid down by the Hon'ble Supreme Court in Maulvi Abdul Qayyum's case 1992 SCMR 241 and the relevant observ4tion is as follows:‑‑

4. "It appears that in holding that the period of limitation for execution of the decree commenced from the date of the decision by the appellate Court, the rule that the decree of the Court of first instance, merged into the decree of Appellate Court, which alone can be executed, was not present to the mind of the learned Judge. It is to be remembered that till such time, an appeal or revision from a decree is not filed, or such proceedings are pending but no stay order has been issued, such decree remains capable of execution but when the Court of last instance passes the decree only that decree can be executed, irrespective of the fact, that the decree of the lower Court is .affirmed.. reversed or modified."

5. The present controversy arising out of a special law i.e. Pre‑emption law. It is settled principle of law that pre‑emption is right of substitution i.e. substitution of the pre‑emption in place of the vendee as per principle laid down by the Hon'ble Supreme Court in the following judgments:‑‑

6. "1987 SCMR 1131 .(Khair Din's case),

7. PLD 1984 SC 334 (Akram's case),

8. PLD 1970 SC 229 (Malik Hussain's case) and

9. PLD 1967 SC 411 (Abdul Karim's case).

10. It is also settled principle of law that the pre‑emptor becomes owner of the property from the date of payment of the pre‑emption money as per principle laid down by the Hon'ble Supreme Court in Akram's case PLD 1984 SC 334. The respondent became owner of the property by virtue of Order 20, Rule 14, C.P.C. The aforesaid rule was interpreted by the Hon'ble Supreme Court in Dr. Niaz Muhammad Marian 1988 SCMR 1016 and the following observation is as follows:‑‑

11. "It is specifically provided in this Rule that the title in the property shall be deemed to have accrued from the date of such payment. So, the execution of the decree and the withdrawal of the money or its payment to the vendee is not relevant or of consequence for the vesting of the title in the pre‑emptor."

12. The aforesaid proposition‑‑of law is also supported by the Division Bench of this Court in Ali Ahmad's case PLD 1973 Lahore 207. In the present case Collector accepted the application of the petitioners and observed as under:‑‑

13. The finding of the Collector was upheld by the Additional Commissioner (Revenue) and Member Board of Revenue. The aforesaid finding brings the case of the respondent within the four corners of Order 20, Rule 14. It is also admitted fact that C.P. No.919 of 1984 filed by the petitioner before the Hon'ble Supreme Court was dismissed on 29‑5‑1988. It is settled principle of law that this Court has ample jurisdiction to take into consideration the subsequent events as per principle laid down by the Division Bench of Karachi High Court in 1990 CLC 1069 (Nisar Mamal's case). Since the substantial justice has been done between the parties by the Courts below, I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Hon'ble Supreme Court in Nawabzada Ronaq Ali's case PLD 1973 SC 236.

14. In view of what has been discussed above, this writ petition has no merits and the same is dismissed.

15. H.B.T./M‑402/L Petition dismissed.