' This second appeal has arisen out of a pre-emption suit filed by the respondents, Nazir Ahmad and another, in respect of certain land. The respondents claimed right of pre-emption for being collaterals of the vendor, namely, Sardar. Their right of pre-emption was not conceded by the defendants, Muhammad Iqbal and another, who are appellants herein, and it was contended by them that they were cultivating the disputed land as tenants at the time of its transfer in their favour and, therefore, they had the first right of pre-emption. The Civil Judge, who heard the suit, upheld the plea of the appellants and dismissed the suit. Thereupon the respondents went in appeal before the District Judge, who reversed the finding of the learned trial Court and decreed the suit. The appellants have, therefore, come up in second appeal to this Court.
2. Learned counsel for the appellants submitted that while deciding the first appeal the learned District Judge had omitted to consider the oral and documentary evidence produced by the appellants to demonstrate that they were cultivating the disputed land as tenants at the time of its sale in their favour. Their oral evidence is the statement of Muhammad Iqbal appellant (D. W. 3) while the documents produced by them are registered deed embodying agreement to sell the disputed land, Exh. D. 1, registered deed in respect of the sale in question, Exh. D. 2, receipt for payment of registration fee, Exh. D. 3, copy of khasra girdawari Exh. D. 4, copy of mutation Exh. D. 5 and copy of order of the Settlement Officer, Exh. D.
6.
3. It was also urged by the learned counsel for the appellants that the first appellate Court had proceeded on wrong premises in deciding the issue relating to right of pre-emption. While dealing with that issue the view taken by the learned District Judge was that since the appellants had ceased to be tenants of the disputed land after having purchased the same, they had lost the first right of pre-emption conferred on the tenants by paragraph 25 of the Land Reforms Regulation, 1972. It was argued by the learned counsel for the appellants that if the tenant of any land purchases the land himself he is not divested of the first right of pre-emption.
4. In reply, learned counsel for the respondents maintained that the learned District Judge had duly considered the evidence on the record. In regard to the copy of khasra girdawari, Exh. D. 4, it was pointed out by him that initially only one of the two appellants, namely, Muhammad Iqbal was shown in the khasra girdawari as a tenant of the disputed land and the other appellants Mst.
Aimna Bibi did not figure as a tenant therein. Subsequently, the appellants manipulated to secure an amendement of entries in the khasra girdawari so as to have the name of Mst. Aimna Bibi also mentioned as a tenant. He explained that the husband of Mst. Aimna Bibi was a Patwari and therefore, she had succeeded in having the above amendment made in the khasra girdawari. It was, therefore, stressed by the learned counsel for the respondents that no reliance could be placed on the amended entries of the khasra girdawari. The copy of khasra girdawari as amended is Exh. D.
4. It was produced by the appellants. Exh. P. 6 is the copy of unamended khasra girdawari which was placed on record by the respondents. In Exh. P. 6, only the name of Muhammad lqbal appellant appears as a tenant while in Exh. D. 4, he as well as Mst.Aimna Bibi appellant have been shown as tenants of the land in dispute.
5. As for the plea of the learned counsel for the appellants that the learned District Judge had not correctly appreciated the first right of pre-emption asserted by the appellants, learned counsel for the respondents did not make any submission to defend the view taken by the learned District Judge.
6. The record would show that although Muhammad Iqbal appellant had, while appearing as D. W.
3, deposed that the appellants were in possession of the disputed land, as tenants, at the time of its sale in their favour yet his statement was not taken into consideration by the learned District Judge. The copy of registered sale deed, Exh. D. 2 and copy of mutation, Exh. D. 5 had also bearing on the question of possession but these documents too were not taken into account by him. The learned District Judge referred to copy of khasra girdawari, Exh. D. 4 and observed that it has been "proved by the evidence of the plaintiffs-appellants that the entries in the khasra girdawaris (copy D. 4) were not correct but did not specify the evidence of the plaintiffs which had rebutted those entries. The learned District Judge also remarked that Mst. Aimna Bibi defendant No, 2 is not the tenant of the suit land" but he did not give any reason for saying so. He did not advert to the respondent's contention that her name was got entered in the khasra girdawari, Exh. D. 4 by underhand means. No reference was made by him to the copy of the order of the Settlement Officer, Exh. D. 6, by which her name was entered in the said khasra girdawari. I am, therefore, of the view that the judgment of the learned District Judge suffers from the defect of misreading and non-reading of evidence.
7. I am also in agreement with the learned counsel for the appellants that the learned District Judge had proceeded on incorrect premises while disposing of the appellants' plea that they had the first right of pre-emption for being the tenants of the land in question. This is evident from his following remarks :- "In my opinion the defendants had not remained the tenants of the suit land after its purchase but they became owners."
' By making these observations, the learned District Judge wanted to convey that even if the appellants were tenants of the land in question at the time of its purchase, they had ceased to be so after becoming its owners in consequence of the sale made in their favour and, therefore, they could not resist the suit for pre-emption for being the tenants of the said land. A perusal of paragraph 25 of the Land Reforms Regulation, 1972, would reveal that in the event of sale of any land comprised in a' tenancy, its tenant has the first right of pre-emption. This means that if the land cultivated by a tenant is sold to a person other than the tenant, he (tenant) would be able to pre-empt the sale in preference to all persons on whom right of pre-emption has been conferred by section 15 of the Punjab Preemption Act, 1913, and if the land is purchased by the tenant himself he can successfully resist a suit for pre-emption by any of those persons. Thus, if the appellants were, in fact, occupying the disputed land as tenants at the time of its sale in their favour, the respondents, who claim pre-emption for being collaterals of the vendor, would not get the land in preference to the appellants. The learned District Judge had, therefore, erred in making observations implying that if the sale of any land is made in favour of its tenant, he cannot make use of his first right of pre-emption for the purpose of defending a suit for pre-emption in regard to such sale.
8. In view of what has gone above, I hold that there was no proper disposal of the first appeal by the learned District Judge.
9. I was reluctant to remand the case due to the improper disposal of the first appeal but there is another reason, to be noted in a moment, for which I can't help making the order of remand.
Admittedly, the entries in the khasra girdawari in question were amended during the pendency of the suit by means of order, copy Exh. D. 6, passed by the Settlement Officer. This order is based on a report of the Tehsildar (E. A. S. 0) which is not on the record. There is also no other evidence in regard to proceedings taken out by the revenue authorities before recommending amendment of khasra girdawari. It is, therefore, not possible to say that the proceedings culminating in the aforesaid order were or were not so conducted as to inspire confidence in the amended entries.
This aspect of the matter deserves to be examined carefully because in view of the first right of pre-emption recently conferred on the tenants it is not unlikely that the persons purchasing landed property, without being its tenants, would, in order to defeat pre-emptive rights, endeavour to prevail upon the revenue officials to secure fictitious entries in the revenue-record so as to have themselves shown as tenants of the land purchased by them. Thus, there is a substantial cause for inviting of additional evidence in regard to the said proceedings.
10. I. Therefore, accept the appeal, set aside the judgment and decree of the learned District Judge and remand the case to him with the direction that he shall allow reasonable opportunity to the parties to produce additional evidence in regard to the proceedings resulting in the order of the Settlement Commissioner, copy Exh. D. 6, and then, after hearing arguments, re-decide the first appeal in the light of my observations and in accordance with law. There shall be no order as to costs.
' Appeal accepted.