' Sher Azam, Slur Ali Khan and Said Akbar Khan purchased the suit land for a sum of Rs, 51,000 per Mutation No, 149 attested on 6th June, 1973 and Said Akbar Khan transferred his share to Akbar Khan per Mutation No, 150 attested the same day. Khan Sardar and two others pre-empted the sale on the ground that as tenants their right was superior and alleged that a sum of Rs, 8,500 only had been paid for the suit land. The suit was contested by the defendants who inter alia denied the superiority of pre-emptive right and averred that Rs, 51,000 had been paid for the suit land. The pleas were reduced to various issues and the suit was decreed by the learned Senior Civil Judge, Bannu on payment of Rs, 39,283 per his judgment, dated 14th April, 1975. The defendants preferred an appeal but it was dismissed by the learned District Judge, Bannu on 14th October, 1975 and they have now come to this Court on revision.
' The learned counsel for the petitioners raised two points only before me and strenuously contended that the respondents were not the tenants of the entire land and secondly, both the Courts below had gravely erred in relying on the market value of the suit land worked out by the Circle Patwari. There is no denying the fact that the respondents are co-tenants in the suit land. A look at the jamabandi 1970-71 shows that Kbasra No, 573/555/227 to 330 measuring 56 kanals 14 marlas was owned by Muhammad Wali Dad Khan and others who were in possession of 8 Kanals (ghair mumkin), Akbar Shab possessed 5 kanals 15 marlas whereas the remaining 41 kanals 19 marlas were in possession of the respondents as tenants. Khasra No, 556/331-332-333 measured 39 kanals 17 marlas. The owners were in possession of 2 kanals Muhammad Zeman and another possessed 10 kanals and the remaining 27 kanals 17 marlas were in possession of the respondents as tenants. Thus, it is abundantly clear that respondents were tenants of 41 kanals 19 marlas in the former and 27 kanals 17 marlas in the latter field.
3. Both the learned Courts below referred to the statement of the petitioner-defendant Sher Azam and held that the tenancy rights of the respondent plaintiffs in the suit land had been admitted by him. Sher Azam had stated as under : Previously the plaintiff and now his sons are cultivating the suit land as tenant. The plaintiffs have got no right of pre-emption.
'It is true that Sher Azam admitted the tenancy rights of the plaintiffs but, in fact, the latter were co- tenants of the suit land and they were not the exclusive tenants of it. The admission was apparently erroneous and in conflict with the revenue record as well as the claim set up by the plaintiffs. This admission would not, in the circumstances, adversely affect the rights of the petitioners.
4. It is contemplated by para. 25(d) of the Land Reforms Regulation, 1972 the subject to the other provisions of this Regulation, the tenant ;ball have the first right of pre-emption in respect of the land comprised in his tenancy. The respondents are not the sole tenants of the entire suit land but, as remarked above, their right is restricted to 41 kanals 19 marlas plus 27 kanals 17 marlas in the two fields which formed the subject-matter of the present suit and they shall be deemed under the law to have a superior right of pre-emption in respect of this land comprised in their tanancy. Both the learned lower Courts erred in holding them to have a superior right with regard to the entire suit land which measures 48 kanals 10 marlas in the former and 36 kanals 4 marlas in the latter field bringing the total to 84 kanals 14 marlas. I would, therefore, hold that the respondents have a superior right of pre-emption in 69 kanals 16 marlas out of the suit land measuring 85 kanals 14 marlas.
5. The learned counsel for the petitioners urged that the market value of the suit land based on five years average was not a satisfactory basis for evaluating the suit land. He in support of his submission referred to E. P. W. 1/6 (which has been placed on the connected file though exhibited in this file) wherein Mutation No, 148 was attested for Rs, 60,000 but on the strength of a compromise between the parties the same land was sold for Rs, 4,000. This solitary transaction would not serve as a yardstick for determining the market value of the suit land and it would not be appropriate to rely on this mutation only. The proper course adopted by the learned lower Court was to rely upon five years' average and I see no reason to disregard it because the Circle Patwari was not subjected to cross-examination seriously in this context. The proportionate price of 69 kanals 16 mar/as of land comes to Rs, 32,373.24 and the respondents are entitled to a decree for this area on payment of the said amount.
6. In the result, I would partly accept the revision, modify the judgments and decrees of the Courts below to the extent that 59 kanals 16 marlas out of the suit land shall stand decreed in favour of the respondents on payment of Rs, 32,373.24. The parties are, however, left to bear their own costs.