Mst. Nasim Akhtar was owner of 2996/19210 share in joint khata, measuring 960 kanals 10 marlas of land, in village Muzafarpur Shumali, Tehsil and District Mianwali. Out of the said holding she sold 1600119210 share, which came to about 80 kanals, in favour of the respondents. The relevant mutation was attested by the local revenue officer on 9th July, 1973. Consequent upon the said sale she put the respondents in actual possession of killas Nos. 2 to 10 of Square No. 1269 and Killa No. 1 of square No. 1270. It may be mentioned that both these squares were part of the joint khata.
2. On 4th July, 1974 the appellant instituted the present suit to pre-empt the sale. His case was that he was a tenant under Mst. Nasim Akhtar m the fields actually transferred by her to the respondents and as such he had a preferential claim to obtain them.
3. The suit was resisted by the respondents on a number of grounds. On the pleadings of the parties the trial Court framed a number of issues. However, before me the controversy between the parties is limited to the question as to how much land the appellant is entitled to receive in exercise of his right of pre-emption. On this part of the case the trial Court held that the appellant was entitled to obtain only 6 kanals of the land out of the joint khata. Its finding in this regard was upheld by the learned District Judge who observed that :- the vendees had purchased 1/12th share of the entire khata measuring 960 kanals and neither any specific khasra number nor rights of cultivation. Tris obviously means that. Every owner of that khata has right of ownership in each khasra number till the partition of the land. It cannot be said that the vendees-appellants had become the sole owners of a particular piece of land measuring 80 kanals by virtue of the sale in dispute. At the most they can lay their hands over I/ 12th share of Khata No. 11. So the learned Civil Judge has rightly found that the pre-emptor-appellant can get the decree for possession by pre-emption of the land measuring 6 kanals only."
From the decision of the learned District Judge the appellant has come in second appeal to this Court.
4. As already stated the khata out of which the sale was made was a joint one owned by a number of persons. Some of the share-holders were in actual possession of different parcels of the land included in the kbata. Thus. According to the iamabandi for the year 1968-69 Mst. Nasim Akhtar together with Mst. Ghulam Khatoon was to the exclusion of other share--holders. In physical possession of Killas Nos. 2, 3, 4, 5, 6, 7, 8 and 9 of square No. 1269. There is no dispute that these fields. Were in the occupa--tion of the appellant as tenant.
5. It is no doubt true that in the mutation evidencing the sale no particular killa numbers have been mentioned and the sale was in respect of only a share in the joint khata, however, it is common ground between the parties that consequent upon the sale possession over the specific fields which were being cultivated by the appellant as tenant under Mst. Nasim Akhtar was given to the respondents. In this respect I would refer to the statement made by guardian ad /item of the respondents who was the only witness who appeared on their behalf: From his statement it is quite clear that in the whole khata the appellant was a tenant in respect of only 9 acres, that he was a tenant under Mst. Nasim Akhtar and that after the sale he had been cultivating the land under there as tenant. There can thus be little doubt that the impugned sale directly affected the land in which the appellant held tenancy rights.
6. Even though in the jamabandi for the year 1968-69 Mst. Ghulam Khatoon has also been shown in possession of the land occupied by the appellant together with Mst. Nasim Akhtar, but this does not appear t be the correct position. I am conscious of the fact that a presumption o correctness attaches to the jamabandi, but in my opinion this presumption stands rebutted here by the fact that immediately after the impugned sale to which Mst. Ghulam Khatoon was not a party, Mst.
Nasim Akhtar was able to put the respondents in possession of the land. This would not have been possible if Mst. Ghulam Khatoon too had been in joint possession with Mst. Nasiin Akhtar.
7. I have not been able to appreciate - the reasoning given by the Courts below in decreeing the suit of the appellant in respect of 6 kanals of land only. They thought that as the impugned sale was in respect of a share of an undivided property and as every share-holder of joint property enjoyed ownership right over every part of the said property, therefore, Mst. Nasim Akhtar did not own more than 1/12th share in the land culti--vated by the appellant. I am unable to subscribe to this view. As already observed, even though the impugned sale was in respect of a share of the undivided property yet Mst. Nasim Akhtar handed over the physical possession of certain specified fields to the respondents. The area of those fields corresponded to the share sold by her to the respondents. These fields even though part of an undivided property were in her possession to the exclusion of the other share-holders and that they were being cultivated by the appellant. The right of pre-emption is one of substitution. There--fore, the appellant will take over whatever right the respondents have received under the sale. The consideration that in a joint holding every share- holder has right in every inch of the common land is entirely irrelevant. It goes without saying that whenever partition of the joint khata takes place' the position of the appellant will be the same as would have been enjoyed by the respondents had he not exercised his superior right.
8. For the reasons stated above, I would accept this appeal, and set aside the judgments and decrees of the Courts below. From the jamabandi for the year 1968-69 and the khasra girdawari it appears that at the time of the impugned sale the appellant was tenant only in respect of killas Nos. 2, 3, 4, 5, 6, 7, 8 and 9 of square No. 1269, in all 72 kanals and 14 marlas of land. At the rate of Rs.
300 per kanal the price of the said killas comes to Rs. 21,600. I may mention that the price of the land at the rate of Rs. 300 per kanal as determined by the trial Court has not been challenged before me. I would direct that the appellant shall within two months of the date of this judgment pay into the Court the purchase money of Rs. 21,600 less the zar-e-panjam and part of the purchase money already deposited by him, and on his doing so, he shall be deemed to have become the owner of the said killas from the- date of the payment and be entitled to receive costs throughout but if the said money is not paid, the suit shall stand dismissed throughout with costs.