' SYED JAMSHED ALI, J.---This appeal was heard in the absence of the respondents on 1-12-2000 and was allowed. C.M. No.1-C-2001 was moved by the respondents for rehearing of the appeal which was allowed and the aforesaid judgment was recalled. It has been re-heard today. The relevant facts are noted hereunder.
2. Vide registered sale-deed, dated 22-2-1978, Mehdi Khan etc. Sold the land in dispute measuring 43 Kanals and 8 Marlas in favour of the respondents. The sale was pre-empted by the two appellants on the ground of being co-sharers and owners of the estate. The suit was contested primarily on the ground that the respondents were tenants on the land in dispute at the time of sale. They also claimed improvements on the land in question to the tune of Rs.10,000. Plea of estoppel was also raised.
3. Necessary issues were framed and the suit was tried. It was decreed on 3-2-1985 by the learned trial Court with the findings that the appellants had superior right and the respondents had failed to establish that they were tenants on the land in dispute.
4. The respondents filed an appeal before the District Court in learned first appellate Court found that the respondents were tenants on the land in dispute and that the appellants had waived their right of preemption. Accordingly, vide judgment and decree, dated 27-11-1985, the appeal was allowed.
5. The learned counsel for the appellants contends that the learned first appellate Court misread the documentary evidence and further that the oral evidence of interested witnesses not being consistent with the documentary evidence was rightly disbelieved by the learned trial Court. He further submits that evidence of D.W.4., Mehdi Khan, one of the vendors was not even considered while returning the finding of estoppel against the appellants.
6. The learned counsel for the respondents has, however, defended the impugned judgment and decree on the basis of the reasoning of the learned first appellate Court. He referred to the statement of Ahmed Khan D. W.1, who was shown to be in possession of the land in dispute, who stated that the respondents were tenants, on the suit-land, and a recital in the sale-deed, (Exh.P.2) that the respondents were in possession. Statement of Rehmat Ali, one of the appellants, who appeared as P.W.1, was also referred according to which on 1/4th of the area, the respondents were in cultivating possession. It may be noted at the outset that the disputed land comprised 1/4th share of a joint Khata (No.15).
7. The submissions made by the learned counsel for the parties have been considered. In Khasra Girdawari, Exh.D.1 for Rabi 1973 and Kharif 1974, Ahmed Khan is recorded as tenant on five Khasra numbers of Khata No.15, Exh.D.2 is Khasra Girdawari for Kharif 1967 to 1969 in respect of the five Khasra numbers. None of these Khasra Girdawaries was relevant as the sale had taken place on 22-2-1978. Exh.D.3 is the disputed sale-deed (also produced as Exh.P.2). A mere recital in this sale- deed that the land was in possession of the respondents was not sufficient to establish their tenancy on the disputed land Exh.D.4 was mutation No.3 showing an oral sale by Ghulam Fatima and others in favour of respondents Nos. 2 and 3. This mutation was entered on 1-10-1974 but was cancelled on 25-6-1975. This document was not either relevant to establish that at the time of sale, the respondents were in possession and as tenants. The learned first appellate Court referred to Exh.D.5 also but no such document was on the record. Therefore, the contention of the learned counsel of the appellant that the documentary evidence was misread by the learned first appellate Court has merit. As far as Ahmed Khan, D.W.1, is concerned, he stated that before the sale, Munshi and Abdullah used to cultivate the said land, Munshi was father of respondents Nos. 1 and 2. Even according to him the land was not being cultivated by any of the respondents. The learned trial Court had rejected the oral evidence on the ground that D.Ws.1 and 2 were inimical and interested witnesses. As far as D.W.3 is concerned, he claimed that the appellants were present at the time of bargain, although D.W.4. one of the vendors, asserted to the contrary. In any case the relevant documentary evidence i.e. The Khasra Girdawari of the relevant period was withheld by the respondents, although Muhammad Sarwar one of the respondents, who appeared as D.W.5., claimed that the Khasra Girdawaries were being recorded in their names.
' As far as Rehmat Ali, P.W.
1., is concerned, he clearly stated that at the time of sale Ahmed Khan was in cultivating possession of the land. Therefore, his statement in cross-examination that 1/4th area was being cultivated by the respondents does not establish that at the time of sale they were in possession of the disputed land as tenants. As far as the findings of waiver against the appellants is concerned, the learned first appellate Court completely ignored the evidence of D.W.4.
8. Accordingly, this appeal is allowed, the impugned judgment and decree, dated 27-11-1985 of the learned first appellate Court are set aside, thereby restoring the judgment and decree of the learned trial Court.