SAID KARIM SHAH vs MEMBER, BOARD OF REVENUE, N.W.F.P. and 21 others
This matter arises from a petition for leave to appeal filed by a pre-emptor against the dismissal of his writ petition by the High Court. The petitioner's pre-emption suit had been initially decreed in part by the Collector on the ground that the petitioner was a tenant. Subsequently, appellate and revisional forums, including the Member, Board of Revenue and the High Court, dismissed the suit, relying on the applicability of the judgment in Said Kamal's case and holding that no prior decree protected the petitioner. Upon review, the Supreme Court of Pakistan observed that the High Court committed a prima facie error in appreciating the facts, as a decree had indeed been passed in favour of the petitioner prior to the relevant cutoff date. Consequently, the Supreme Court held that the petitioner was entitled to seek restoration of the pre-emption decree to the extent granted, in accordance with the principle established in Sardar Ali and others v. Muhammad Ali and others. Leave to appeal was accordingly granted.
- Whether a pre-emptor is entitled to the restoration of a pre-emption decree passed prior to 1-7-1986?
- Does a High Court commit a reviewable error when it misreads the record regarding the existence of a prior decree in a pre-emption suit?
ORDER
1. ' MUHAMMAD AFZAL ZULLAH, J.--Leave to appeal has been sought by a pre-emrtcr/plaintiff; against the dismissal by the High Court, of his writ petition.
2. ' The petitioner's pre-emption suit was decreed by the Collector on the ground/qualification that he was a tenant. It was so decreed to the extent of 40 kanals 19 marlas only out of 64 kanals 11 marlas.
3. The decree was passed on 26-10-1982. The Additional Commissioner accepted the appeal of the respondents' side and the suit was dismissed on 19-3-1985. The petitioner's revision before the Member, Board of Revenue and the writ petition before the High Court having been dismissed he has now sought leave to appeal.
4. ' While dismissing the writ petition the High Court observed as follows:- "However, this contention is not acceptable for the simple reason that the petitioner had not been granted any decree whereby the petitioner could claim that the aforesaid judgment of Supreme Court (in Said Kamal's case) was not applicable to his case."
5. ' Learned counsel contended that the afore-noted finding by the High Court is based on an error in appreciating the facts of the case and thus based on misreading.
6. ' Prima facie, the argument of the learned counsel has force. It is mentioned in the impugned judgment itself that "by his judgment dated 26-10-1982, (the Collector) decreed the suit of the petitioner to the extent of 40 kanals 19 marlas and dismissed it with regard to area measuring 23 kanals 12 marlas."
7. Thus, prima facie, as held in the case of Sardar Ah and others v. Muhammad Ali and others (PLD 1988 SC 287) the petitioner was entitled to urge for and seek restoration of decree passed before 1- 7-1986 to the extent of 40 Kanals marlas. That being so, it is a fit case for grant of leave to appeal.
8. ' Order accordingly. Security Rs, 5000.
9. ' The appeal shall he prepared on present record with direction to file all essential documents.