MUHAMMAD RAMZAN and others Versus KHAN MUHAMMAD and others

MANZOOR HUSSAIN SIAL, J.---This appeal, by leave of this Court, is directed against the order dated 9-12-1980 of the Lahore High Court whereby Writ Petition No,1549/80 filed by the appellants was dismissed.

2.The facts, in brief leading to this appeal, are that on 27-6-1974 the appellants-plaintiffs instituted suit for possession of the suit land in exercise of their right of pre-emption against respondents on the ground that they were tenants and had superior right of pre-emption against the vendee- defendants. The suit was decreed by the learned Civil Judge, Mailsi, on 7-11-1975. On appeal, however, the learned District Judge, Multan, remanded the case to the trial Court for fresh decision after framing an issue in respect of the appellants' superior right of pre-emption. After remand, the case was transferred to A.C./Collector, Mailsi in view of the conferment of exclusive jurisdiction on the Collector to entertain and decide the suit wherein superior right of preemption comprised in the tenancy was claimed. The Collector, Mailsi found that the suit land was only a share in the joint Khata and that too was not jointly cultivated by the appellants at the time of sale. According to him, only Allah Bakhsh and plaintiff No,10 were found in cultivating possession of a portion of the land in dispute. He, therefore, issued the suit on 4-10-1976. Neither the Additional Commissioner in appeal nor the Member, Board of Revenue in revision adverted to actual cultivating possession of the appellants over the suit land as tenants. The appeal as well as the revision filed by the appellants were dismissed.

3.Aggrieved by the aforementioned order by the Revenue Officer, the appellants invoked the Constitutional jurisdiction of the Lahore High Court through Writ Petition No,1549/80 which too was dismissed on 9-12-1980. The appellants then sought leave to appeal against the order of the Lahore High Court which, however, was declined on the ground that the case was hit by judgment in Said Kamal's case (PLD 1986 SC 360). On review filed by the appellants, this Court noticed that the Civil Court had passed a decree in favour of the appellants pre-emptors on 7-11-1975 before the target date with the result that the review petition was allowed on 30-6-1990 and leave to appeal was granted.

4.The appeal came up for final hearing on 14-1-1993 but was dismissed. The appellants once again filed review petition which was allowed and the original appeal (CA.No,118/90) was directed to be fixed for hearing.

5.We have heard learned counsel for the parties at some length and have perused the documents on the file with their assistance. Without adverting to the contentions raised on behalf of the parties to this appeal we are of the view that the factum of possession of the appellants as tenants over the suit property on the date of its sale-deeds re-examination by the Collector and fresh decision of the suit on merits in the light of the evidence produced by the parties on the two Issues framed hereunder:--

In the result this appeal is allowed and the case is remanded to the Assistant

Commissioner/Collector, Mailsi in the terms indicated above, with no order as to costs.