HLAUJ KHAN Versus MEMBER, BOARD OF REVENUE
The petitioner, a joint pre-emptor, sought leave to appeal against the judgment of the Lahore High Court passed in a constitutional petition, whereby his claim was deleted and that of his co-pre-emptor was allowed. The original dispute arose from a pre-emption suit regarding agricultural land, which was partially decreed by the revenue authorities. In the constitutional petition, the High Court permitted the deletion of the petitioner and his claim, subsequently granting relief to the remaining pre-emptor. The core legal question before the Supreme Court was whether the High Court, in the exercise of its constitutional jurisdiction, could summarily permit the deletion of a party and abandonment of relief, thereby affecting substantive rights involving the principle of sinker, without proper examination by the courts of original or revisional jurisdiction. The Supreme Court granted leave to appeal to examine this procedural and substantive aspect of the case.
- Whether the High Court in constitutional jurisdiction can summarily permit the deletion of a party and abandonment of a part of the relief in a pre-emption matter?
- Does the deletion of a joint pre-emptor in a pre-emption suit affect the substantive right of pre-emption involving the principle of sinker?
- Can a High Court grant relief to only one of the joint pre-emptors without examining all aspects of the case after proper application and reply?
ORDER
SHAFIUR RAHMAN, J.- - Mauj Khan, the petitioner, a joint pre-emptor, seeks leave to appeal against the judgment of the Lahore High Court dated 13-5-1987 in a constitutional petition whereby his claim was deleted and that of his joint pre-emptor, respondent No.6 was allowed to prevail.
2. Land measuring 69 kanals was sold by registered sale-deed on 7-2-1974 in favour of Jewan Khan, respondent No.4. The petitioner and Rehman Khan, respondent No.6, his brother, filed a joint suit for pre-emption. They claimed to be the tenants of the land sold. The Assistant Commissioner decreed this suit. An appeal was preferred to the Additional Commissioner which was dismissed. In revision, the Board of Revenue interfered because it found that only one Khasra No.467 was in the joint tenancy of the pre-emptors, all others being in individual tenancy of one or the other and not both. Hence a decree for only three Kanals was allowed to stand and the rest of the claim was dismissed.
3. A constitutional petition was then filed by the two pre-emptors. The factual position was, it appears, conceded. The High Court by the impugned judgment allowed the learned counsel representing the pre-emptors to delete the name of Mauj Khan petitioner along with his claim to that part of the land sold which was in his tenancy and also in his absence declined to decree the claim in respect of one Khasra number which was jointly held by the two and instead allowed the claim of Rehman Khan in respect of the property shown in his individual tenancy.
4. Mr.S.M. Zamir Zaidi, Advocate, the learned counsel for the petitioner contended that the deletion of the petitioner from the proceedings was without any authority, could not be accomplished in constitutional petition and his claim has been unjustifiably and without authority defeated thereby.
5. It appears that while judicially reviewing the decision of the Member Board of Revenue in exercise of the constitutional jurisdiction, the High Court found no legal or factual fault with it. Nevertheless it allowed in a somewhat summary fashion deletion of a party, abandonment of a part of the relief and proceeded to grant relief to one of the joint pre-emptors. The only question which requires authoritative pronouncement is whether such a procedure should have been adopted in the constitutional jurisdiction where the question of addition of a party or deletion of a party could have a bearing on the right of pre-emption itself involving the principle of sinker as well and all aspects of it should have been first examined by the Courts having jurisdiction in the matter after proper application and reply thereto. Leave to appeal is, therefore, granted to examine this aspect of the case.
6. Security in the sum of Rs.2,500.
7. Status quo with regard to possession.
M.I./M-206/S ????????????????????????????????????????????????????????????????????????????????????????????????? Leave granted