' The facts are ; that the, appellant brought a suit against the respondents to pre-empt the sale of the land in dispute measuring 24 Kanals 10 Marlas. He based his superior right of pre-emption on the ground, that he was the owner of the estate and that out of the suit land an area measuring 13 Kanals 6 Marlas bearing Khasra No, 861/626 comprised in his tenancy. The learned trial Court by its judgment dated 20th February, 1976 decreed the suit on both the counts. The vendee-respondents went in appeal and the learned Additional District Judge took the view that the documents relied upon by the appellant to establish his tenancy, did not relate to the suit land. As regards the other ground he came to the conclusion that the respondents too had become the owners of the estate before the date of the sale in question as the litigation in this behalf relating to some other piece of land, in the same estate, ended in their favour. Accordingly by means of the judgment and decree impugned through this appeal he reversed the findings of the learned trial Court and dismissed the suit.
2. 1 have heard the learned counsel for the parties and examined the available record. The learned counsel for the appellant has confined his submissions only to the land bearing Khasra No, 861/626 to contend that as per copy of the Khasra-Girdawri Exh. P 2, at the time of the sale it was under his cultivating possession, as tenant and that this document was misread by the learned Additional District Judge. He thus, submitted that to the extent of this Khasra number, the appellant had the first right of pre-emption.
3. There is much force in these submissions. It is evident from the document Exh. P. 2 that before the date of the sale, Khasra No, 861/626 was occupied by the appellant as a tenant under the vendee.
It is, thus obvious that this document was misread by the learned first appellate Court. In the copy of the Jamabandi for the year 1972-73, as well, the appellant's status qua this Khasra number is recorded as tenant but this document was excluded, by the learned Additional District Judge from consideration, as the Patwari had not certified it to be a true copy. Even if this document is ignored, the copy of the Khasra-Girdawri Exh. P. 2 and the oral evidence produced by the appellant is sufficient to sustain his claim.
4. Two objections have been raised on behalf of the respondents. Firstly, that the suit enforcing the right of pre-emption in respect of land comprising the tenancy, could be heard and decided only by the Collector and secondly, even if it is heard by the civil Court, in Exh. P.
2. a part of Khasra No, 861/626 has been described as `Ghair Mumkin Sarak' which area cannot be treated to be in possession of the appellant. In the submission of the learned counsel, even if the appellant's claim that the said Khasra number comprised in his tenancy, is accepted, the area under the road has to be excluded and the suit cannot be decreed for the entire area covered under this Khasra number.
5. The provisions relating to the ouster of civil Court's jurisdiction in respect of suits for enforcing the right of pre-emption, with regard t the land comprising the tenancy, is embodied in section 6 of the Land Reforms (Amendment) Ordinance, 1976, which was enforced with effect from 19th May, 1976.
This Ordinance was replaced by Act XLVIII o B 1976. As observed above, the suit was decreed by the learned trial Court on 20th February, 1976 much before the date when the Ordinance was promulgated. The objection raised by the learned counsel is thus not tenable.
6. As regards the other contention I find that only a small area o Khasra No, 861/626 is shown as `Ghair Mumkin Sarak'. Nevertheless in the column relating to cultivating possession, the appellant's name C figures against the entire Khasra number. I am not inclined to exclude the area under the road from the appellant's tenancy, particularly, when be is prepared to take the entire Khasra number.
7. Accordingly this R.S.A. In allowed, judgment and decree of the learned first appellate Court varied to the extent that the appellant's suit in respect of land bearing Khasra No, 868/626, measuring 13 Kanals 6 Marlas, is decreed in his favour, with no order as to costs, subject to the payment of proportionate sale price, within two months of this judgment In case he fails to pay the sale price aforesaid, within this time limit, the appeal shall stand dismissed with costs.