ABDUL GHAFOOR Versus MUHAMMAD FAZIL

AJMAL MIAN, J.‑‑ ‑This is an appeal with the leave of this Court against the judgment dated 2‑6‑1992 of a learned Single Judge of the Lahore High Court passed in R.SA. No.170 of 1979 filed by the respondent against the appellate judgment/decree dated 12‑2‑1979 of the learned District Judge, Multan, in Civil Appeal No.44 of 1978 reversing the judgment/decree dated 0‑2‑1978 of the learned Civil Judge, Kabirwala, decreeing respondent's pre‑emption suit, allowing the same by setting aside the above appellate 1iment/decree and restoring the judgment/decree of the trial Court. Le to appeal was granted to consider, whether in view of amendment in para. 25 of M.L.R. 115, hereinafter referred to as the M.L.R., by Ordinance XX of 1976 which came into force on 6‑5‑1976, the suit could have p, been proceeded with before the learned Civil Judge, Kabirwala, and secondly whether the learned Judge in Chambers was justified in taking a contrary view from the earlier view found favour with the two learned Judges of the same Court.

2. The brief facts are that the respondent and three co‑plaintiffs filed aforesaid pre‑emption suit in the Court of Civil Judge, Ist Class, Kabirwala, in respect of the suit land which was alienated in favour of the present appellants under Mutation No.40 dated 31‑3‑1973 for an ostensible sale price of Rs.48,000. The three co‑plaintiffs, who are no longer party to the above proceedings, founded their claim of pre‑emption on the basis of their tenancy rights; whereas, the respondent's claim for pre‑emption was based on composite rights i.e. as the tenant as well a co‑owner. While the above suit was pending, Land Reforms (Amendment) Ordinance, 1976 (Ordinance No. XX of 1976), hereinafter referred to as to Ordinance, which was gazetted on 19‑5‑1976 and whereby inter alia sub‑paragraph (5) was added, which reads as follows:‑

"(5) All suits for enforcing the right of pre‑emption in respect of land comprised in a tenancy shall be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land in respect of which the right of pre‑emption has been claimed is situated, and all such suits which may be pending in any Court immediately before the commencement of the Land Reforms (Amendment) Ordinance, 1976, shall on such commencement, stand transferred to the Collector concerned." "

It seems that after the promulgation of the Ordinance, the above suit first time came up for hearing on 12‑6‑1976 when the following order was passed:‑‑

3. It appears that on 14‑7‑1976 the learned Civil Judge heard the learned counsel for the parties and recorded the following order:‑‑

It seems that against the above order, the appellant riled a civil revision, which was dismissed.

4. It may be observed that pursuant to above order dated 14‑7‑1976, the other co‑plaintiffs were dropped and the respondent filed an amended plaint claiming pre‑emption on the basis of co‑ownership. The above suit was resisted by the present appellants inasmuch as a written statement was filed. However, the learned trial Court, after framing issues and recording evidence, decreed the suit through the aforesaid judgment/decree dated 5‑2‑1978. The appellants filed above civil appeal, which was allowed by the learned District Judge, Multan, 'through his aforementioned judgment/decree dated 12‑2‑1979. The respondent then filed above R.F.A., which was allowed in the above terms. Thereupon, the appellants filed a petition for leave to appeal, which was granted to consider the above questions.

5. In support of the above appeal Mr. Hassan Ahmed Kanwar, learned A.S.C. appearing for the appellants, has vehemently contended that the language employed in above‑quoted newly‑added sub‑paragraph (5) in para. 25 of the M.L.R. is such that the above suit stood automatically transferred upon enforcement of the Ordinance on 19‑5‑1976 and, therefore, all the proceedings before the learned Civil Judge were coram non judice and the above‑quoted orders dated 12‑6‑1976 and 14‑7‑1976 were without jurisdiction. In furtherance of his above submission .he has relied upon the following cases:‑

(i) Abdul Qayyum and another v. Zubaida Khanum and 4 others (1982 CLC 700);

(ii) Muhammad Ramzan and 2 others v. Nur Muhammad and 4 others (PLD 1987 Lah. 268); and

(iii) Muhammad Ismail and others v. Member, Board of Revenue, Punjab, Lahore and others (1985 SCMR 112).

On the other hand, Mr. Talib H. Rizvi, learned A.S.C. appearing for the respondent, has urged that the above contention of the learned counsel for the appellants is devoid of any force as the suit which was proceeded with by the learned Civil Judge was not founded on the tenancy rights and was confined to the respondent's right a co‑owner. His further submission was that after the appellants' above civil revision was dismissed by the High Court and the suit was proceeded before the learned Civil Judge, the appellants did not raise any objection as to the competency of the suit before him or before the learned District Judge or the learned Judge in Chambers. He has also submitted that the above rulings relied upon by the learned counsel for the appellants are distinguishable.

6. In the above first case, a learned Single Judge of the Lahore High Court, while accepting a civil revision, held that the foremost question before the trial Court in the suit involved in the above revision was, whether respondents Nos.2, 3 and 4 were tenant in the land and were as such entitled to pre‑empt and that on accounts of insertion of sub‑paragraph (5) in para..25 of the KL.R., such suit automatically stood transferred to the Collector and jurisdiction of the' Civil Courts was ousted. The same view was taken by another learned Judge in the aforesaid second case. In the second case it was further held that since the suit was founded on composite qualifications, the matter first was to be adjudicated upon the question of tenancy rights by the Collector, who thereafter could send the suit back to the Civil Court.

In the third case the point in issue has not been directly dealt with, but the same has been referred to by the learned counsel for the appellants to demonstrate that in the case which had come up for hearing before this Court, the suit was automatically transferred to the Collector.

7. The above cases have no application to the case in hand. It is true that the language used in the above added sub‑paragraph (5) of para. 25 of the M.L.R. indicates that all the suits for enforcing the rights of pre‑emption in respect of land comprising in a tenancy were exclusively triable by the l Collector upon‑ the enforcement of the above amended Ordinance and such suits, which were then pending, were to stand transferred to the Collector concerned. The above provision does not deal with a suit for pre‑emption which was founded not exclusively on the right of tenancy but was based on composite qualifications more than one. There was nothing in the above provision to indicate what would be done in respect thereof. It is true that in the above two judgments of the learned Single Judges of the Lahore High Court, it has been held that since the right of tenancy was foremost as compared to other rights of pre‑emption, the pre‑emption suit based on composite tight would stand transferred to the Collector. The above view is not strictly in terms of the language and the above added sub‑paragraph (5). In the present case after the addition of sub‑paragraph (5) to para. 25 of the M.L.R., the case had come up for hearing first time before the learned Civil Judge on 12‑6‑1976 when the question arose, as to whether the suit should have been transferred to the Collector or not. The matter was fixed for hearing of the arguments op 14‑7‑1976 when the co‑plaintiffs, whose right of pre‑emption was founded on tenancy rights alone, requested that they may be dropped, whereas the respondent, whose right of pre‑emption was bagged on composite qualifications, requested for dropping his claim of pre‑emption on the basis of tenancy rights and to confine his right of pre‑emption on the basis of co‑ownership. The above request was allowed. The appellants challenged the aforesaid order before the High Court through a civil revision as stated above without any success. The suit which was proceeded with before the learned Civil Judge admittedly was within his jurisdiction as the pre‑emption was no longer claimed on the basis of tenancy rights. The appellants did not raise any objection before the Civil Judge or the District Judge or the Judge in Chambers as to the `competency of the suit before them after the above amendment was allowed. The plea raised before Court seems to be an afterthought which is not legally tenable. The question in issue before us is, as to whether the Civil Judge who passed the pre‑emption decree in favour of the respondent on the basis of co‑ownership had jurisdiction in the matter or not on the date when he passed the same. Admittedly; he had such jurisdiction. The District Judge and the Judge in chambers were also competent to either sustain such decree or to set aside the same.

8. The above contention of the learned counsel for the appellants seems to be hyper-technical. The plaintiffs in the suit could have even dropped their claim on tile basis of their tenancy rights before the Collector and then the suit would have been sent back to the Civil Judge for trial to decide, whether the respondent had pre‑emption right on the basis of co‑ownership. Factually no prejudice had been suffered by the appellants even if there was any above technical infirmity.

9. The upshot of the above discussion is that the appeal is dismissed, with .V no order as to costs.

(Sd.)

Ajmal Mian, J.

I agree subject to my note appended hereto.

(Sd.)

Zia Mahmood Mirza, J:

(Sd.)

Mamoon Kazi, J.

ZIA MAHMOOD MIRZA, J.‑‑‑I have gone through the judgment handed down by my brother Mr. Justice Ajmal, Mian. I quite agree with the order dismissing the appeal and the reasoning in support thereof but with respect, I find myself unable to subscribe to the view/observation recorded at page 10 of the judgment to the effect that the view taken in the two judgments of Lahore High Court (reported in 1992 CLC 700 and PLD 1987 Lahore 268) that since the right of tenancy was foremost as compared to other rights of pre emption, the pre‑emption suit based on composite right would stand transferred to the Collector "is not strictly in terms of the language used in the above‑added sub‑paragraph‑5".

2. In my humble view, law as contained in sub‑paragraph (5) of paragraph 25 of Land Reforms Regulation, 1972 (M.L.R. 115 of 1972) hereinafter called the Regulation has been correctly interpreted by the learned Judges of the Lahore High Court in the aforementioned two cases. In both the cases, several plaintiffs jointly brought pre‑emption suits claiming preferential right to pre‑empt the sale of the suit land on a number of grounds. In the first mentioned case, there were five co‑plaintiffs. One of them claimed to be the legal heir of the vendor and also the owner in the estate; the other stated that he was a co‑sharer in the Khata of which the suit land formed a part while the rest of them based their superior right on the ground that they were the tenants of the suit land though two of them also claimed to be the owners in the estate. In the second case, all the plaintiffs claimed superior pre‑emptive right on the ground that they were the collaterals of the vendor, co‑sharers in the Khata and also the tenants of the suit land. The suit in each case was still pending in the Civil Court when Land Reforms (Amendment) Ordinance, 1976 came into force adding sub‑paragraph (5) to paragraph 25 of the Regulation which provision conferred exclusive jurisdiction on the Collector to entertain, hear and decide all suits seeking to enforce the right of pre‑emption in respect of land comprised in a tenancy and it was also provided in subparagraph (5) that all such suits pending in any, Court immediately before the commencement of the Ordinance shall, on such commencement, stand transferred to the Collector concerned .

An objection was raised by the defendant/vendees in each case that since the suits also involved the claim to pre‑emption based on the ground of tenancy, the suits stood transferred to the Collector who alone had the jurisdiction to decide such claims. The plea/objection did not find favour with the Civil Courts and the matter was brought to the High Court where the learned Single judge (Mr. Justice S.S. Jan as his Lordship then was held in the first mentioned case had a tenant has been vested with the first right of, pre‑emption in respect of the land comprised in his tenancy and in case he chooses to exercise his right, all other claims of preferential rights stand superseded and that by operation of the provisions of sub‑paragraph (5), the suit automatically stood transferred to the Collector to whom the Civil Court ought to have sent the file for deciding the claim of three plaintiffs who had asserted that they were the tenants of the suit land. Similar view was taken in the second case also.

3. The view taken in both the cases, to my mind, is in perfect accord with the relevant provisions of the Regulation bearing on the issue. Paragraph 25 in sub‑paragraph (3) (d) vested the tenant with the first right of pre‑emption in I respect of the land comprised in his tenancy (underlining is mine). This provision necessarily implies that if a tenant exercises his right of pre‑emption on the basis of his status as a tenant, his claim, if any, founded on any other qualification or for that matter the claims of his tenancy would stand superseded and the tenant's claim would be determined first which, of course, would have to be decided by the Collector who was given exclusive jurisdiction in the matter by virtue of sub‑paragraph (5). Needless to observe that if the Collector accepts the claim of the tenant and decrees his suit, that will be the end of the matter. If, however, the tenant fails to prove his claim, the Collector concerned shall send the case back to the Civil Court for trial and decision on the basis of other qualifications claimed by the plaintiffs.

4. The afore-noted legal position notwithstanding, it cannot legitimately be invoked in the present case owing its certain distinguishing features. The objection raised by the appellants to the jurisdiction of the Civil Court to proceed with the suit after the coming into force of sub‑paragraph (5) was repelled by the trial Court and the revision petition, too, was dismissed by the High Court. Thereafter, the appellants took no objection either before the trial Court or the first appellate Court or even in the High Court. They cannot, therefore, be permitted to raise this objection before this Court for the first time. Even otherwise, since some of the plaintiffs who claimed superior right of pre‑emption on the basis of their tenancy had withdrawn from the suit and the respondent‑plaintiff, too, had abandoned his claim based on tenancy where after the suit was tried and decreed by the trial Court on the basis of other qualifications, the objection now being taken by the appellant with reference to provisions of paragraph (5) is only of academic importance. It has been rightly observed in para. 8 of the judgment that even if the suit had been transferred to the Collector, the plaintiffs could well have dropped their claim on the basis of their tenancy rights before him and then the suit would again have come back to the Civil Court for trial. In the circumstances, no prejudice had been caused to the appellants even if there was any technical infirmity in not sending the case to the Collector: No interference with the impugned judgment of the High Court is, therefore, called for.

M.B.A:/A‑1303/S Orders accordingly.