' The appellant/plaintiff, in his claim for pre-emption succeeded at the trial stage, but on appeal of the respondent No,1 lost at the appellate forum.
2. Briefly stated the facts of the case are, that through registered sale-deed 9-5-1975, respondent No,1 purchased 201 Kanals, 12 Marlas, of land situated in Chak No,73/N.P., Tehsil and District Rahim Yar Khan, this sale was pre-empted by the appellant, claiming superior right of pre-emption on two counts, firstly, as being co-owner in the Khata and secondly, being owner in the estate. The suit was contested by the respondent No,1, who claimed that he is the tenant of the suit land, and thus, has a superior right of pre-emption qua the appellant, besides, the appellant's status as a co- owner in the Khata or the owner in estate was also denied. Learned trial Court framed the issues and after conducting the trial the suit was allowed, vide judgment and decree dated 30-6-1980, holding that though the appellant, has failed to prove being co-owner of the Khata but has established being owner of the estate, the defence of the respondent No,1 about his tenancy of the suit land was not accepted by the trial Court. Aggrieved of the above, respondents Nos.1 and 2 filed an appeal. It may be pertinent to state here, that respondent No,2, as stated by the learned counsel for the appellant, has purchased a part of the suit property measuring 1 Kanal, 17 Marlas, during the pendency of the suit on account of a consent decree for specific performance. Anyhow, the appeal of the respondents has been allowed, the findings of the trial Court, on both the above counts, have been set aside, and it has been held, that the appellant, has failed to prove being an owner in the estate and that the respondent No,1 has established being tenant of the suit property at the time of the sale.
3. Learned counsel for the appellant contends, that according to Exhs.P.9 and P.14, the appellant has proved that he is. The owner in the estate, particularly through the Jamabandi for the year 1970-71. Learned counsel for the appellant while answering a query if the appellant could become owner on account of a registered agreement to sell, as in the present case; he relied upon Rasool Bakhsh v. District Judge, Dera Ghazi Khan and 15 others 2000 YLR 1513 and Chaudhry Muhammad Saeed Mujheana, Advocate v. Muhammad Anwar-ul-Haq and others 2000 YLR 280, to argue that the oral sale is permissible under the law, as the prohibitions of section 54 of the Transfer of Property Act, 1882, were not applicable at the relevant time and that the mutation of the sale had been duly entered/attested in favour of the appellant on the basis of the Exh.D.9, the agreement to sell.
' As regards the other question, whether the respondent No,1, was tenant in the suit property, it has been argued that the Khasra Girdawari, reliance upon which placed by the learned Appellate Court does not carry any presumption of correctness, because the sale took place in the Rabi 1975, but instead of showing the respondent No,1 as an owner he has been shown as a tenant under the vendor, which position is self-contradictory.
4. Conversely, learned counsel for the respondent No,1, has relied upon Muhammad Bakhsh v. Zia Ullah and others PLD 1971 Baghdad-ulJadid 42; Muhammad Bakhsh v. Zia Ullah and others 1983 SCM R 988 Muhammad Iqbal through Legal Heirs v. Bashir Ahmed and 19 others PLD 2002 Lah. 88 to argue that the oral sale could not be made, and thus, any sale transaction in violation of section 54 of the Transfer of Property Act, 1882, is invalid and does not confer upon the vendee a right of ownership in the estate. On the question of tenancy, learned counsel for the respondent, submitted that the appellant himself has produced on record Exh.P.16, Khasra Girdawari of the relevant period, which clearly shows that the respondent No,1, was the tenant at the time when the sale took place, therefore, the appellant cannot get out of his own documentary evidence.
5. I have heard the learned counsel for the parties. As regards the question, whether the oral sale in favour of the appellant, was valid or invalid, suffice it to say, that once the sale has been mutated and due effect has been given in the Jamabandi for the year 1970-71, for all intents and purposes, the appellant, had legally acquired the right of ownership in the estate. This Jamabandi has not been assailed or got set aside by the respondents, thus, at the time when the sale in favour of the respondent No,1 was made, admittedly, the appellant, was the owner in the estate and the learned Appellate Court, has taken an erroneous view in disregarding Exhs.P.9 and P.14, oral sale is permissible under the law, and if such sale had taken place, and was given due effect in the Revenue Record, the respondent vendee in a pre-emption action, while Defending him, cannot challenge the validity of the sale in favour of the appellant. In view of the above, the finding of the learned Court of appeal to the extent that the appellant is not the owner of the estate, is set aside.
6. As regards the other question about the tenancy of the respondent No,1, suffice it to say, that the appellant himself has produced Exh.P.16, the Khasra Girdawari of the relevant period, when the sale took place; this contemplates that the respondent No,1, was a tenant; this factum has been further proved by the Exh.D.9, ice, the same Khasra Girdawari, the oral evidence has also been led by the respondent to establish his tenancy at the time of the sale.
7. The argument of the learned counsel for the appellant, that because since Kharif 1971, the tenancy vested in the name of another person Muhammad Siddique and there is no evidence on record as to how the tenancy changed to the name of the Abdul Rehman, thus, in view of this fact, Exh.P.16 should not be believed. It is also contended, that the vendor was not produced by the respondent No,1, to prove the creation of the tenancy since Kharif 1975, therefore, the presumption of withholding the best evidence be drawn against the respondent.
8. I am afraid, both the contentions have no force. As regards the first submission is concerned, once having himself placed on record the Khasra Girdawari for the concerned period, which clearly in unequivocal terms postulates that the respondent No,1, was tenant in Kharif 1975, when the sale took place, the appellant, could not wriggle out from the effect of this documentary evidence. No evidence has been led by the appellant to disprove the document, which he himself has tendered in evidence.
'As regards the other question, that the vendor has not been produced, therefore, the presumption be drawn against the respondent No,l. It may be held, that if the appellant intended to disprove the factum, that no tenancy was created in favour of the respondent, he should have examined the vendee or led any evidence but this was not done, resultantly, the appellant is also hit by the same pre-emption rule.
9. In the light of above, I do not find any error in the finding of the learned Court of Appeal, about the tenancy of the respondent No,1, at the time of the sale, resultantly, by upholding such finding this appeal, is dismissed having no merits. No order as to costs.