Civil Revisions Nos. 68/76 and 69/76 arise in the background of facts that one Fazal Mahboob sold 137/864 share equal to an area of 6 Kanals Marlas in Khata No, 421 comprised of seven Khasra numbers to Mian Muhammad Ibrahim and Mian Sardar Ali for Rs, 6,000 by a registered deed dated 25th August, 1972. The sale as such was pre-empted by one Fazal Rabi vide Suit No, 308/1 on the basis of co-sharership, participation in appendages and immunities and contiguity. One Mashal also pre-empted the sale vide Suit No, 309/1 claiming to be the tenant in occupation of the suit land and to have, therefore, a first right of pre-emption. On 14th September, 1973 the trial Court, after finding that there have been filed more than one suit regarding the same sale pending in his Court, ordered the consolidation of the two suits and directed the rival preemptors along the vendees to file the written statements on the next date. He however, did not direct the plaintiff-pre- emptors of the two suits to file amended plaint and to join each other as defendants which is a violation of the statutory provisions contained in section 28 of the N.-W.F.P. Preemption Act, 195 read with Order I, rule 10 (4), C.P.C. An amended plaint is even otherwise essential as a plaintiff-pre- emptor is to disclose cause of action against the rival pre-emptor added as defendant and in some A cases the rival pre-emptors may raise objections of waiver, estoppel and collusion etc. Against each other. The trial Courts are, therefore, cautioned to ask for amended plaints in case of consolidation of the rival pre-emption suits arising out of the same sale in compliance of the provisions of section 28 of the N.-W.F.P. Pre-emption Act, 1950.
2. Anyhow, herein, the vendees and the rival pre-emptors had filed their written statements. The consolidation proceedings were conducted in Suit No, 308/1 and there were framed a number of issues but for the disposal of the revision-petitions, issue No, 1 as that which of the rival pre- emptors have got a superior right of pre-emption inter se and against the vendees is relevant.
3. Fazale Rabbi pre-emptor produced Patwari Halqa (P. W. 1) with "Fard Intikhab" 1968-69, Exh. P.W.
1/1, quenquenial average, Exh. P. W. 1/2, and Khasra Girdawari from Kharif 1971 till Kharif 1973, Exh.
P.W.1/3, and Haji Fazal Maabood, the vendor as P.W. 3, besides recording his own statement as P.W.
2. Mashal, the rival pre-emptor recorded his, statement as. D.W. 1 while the attorney of the vendees recorded his statement as D.W. 2 also placing on file copy of the registered deed. The trial Court found Fazale Rabbi, pre-emptor, a co-sharer in the suit land while in Khasra Nos. 2357 and 2358 he found Mashal, the rival pre-emptor, a tenant occupation and, as such, he granted a decree for possession to Fazale Rabbi with regard to the suit land except Khasra Nos. 2357 and 2358 on payment of Rs, 4,348.71 including the registration expenses and District Council fee within one month failing with his suit to stand dismissed. On the other hand there was granted a decree for possession to the rival pre-emptor Mashal in respect of two Khasra Nos. 2357 and 2358 on payment of Rs, 2,001.29 including registration expenses and District Council tax which amount, rather in excess, had already been deposited by him in the Court. Both the pre-emptors went in appeal against the judgment and decree in the aforesaid terms before the Additional District Judge, Peshawar which Court observed under para. 25 (3)(d) of M.L.R. 115 that there has been given the first right of pre-emption to a tenant in respect of the land comprised in his tenancy from Kharif 1972 and that since the sale has taken place on 25th August, 1972 while according to the Records of Manual, the Girdawari for Kharif commences from 1st October, as such, Mashal, the tenant preemptor was not to have a right of pre-emption in respect of the land sold on 25th August, 1972 some two months prior to the Kharif crop of 1972, Girdawari whereof was to commence on 1st of October. As a result the Court dismissed the appeal of Mashal, the tenant-pre-emptor and accepted the appeal of co-share-pre-emptor granting him a decree with respect to the whole of the land in dispute and dismissing the suit of tenant-pre-emptor further directing the parties to bear their own costs throughout. The present revision petitions have been filed by the tenant-pre- emptor against the aforesaid judgments of the Courts below.
4. After going through the evidence on record, the Courts below have been found to have misread the evidence at least to the extent of Khasra No, 2358 as both of them had found Mashal, the tenant-pre-emptor as a tenant in its occupation although Patwari Halqa has stated him a tenant in occupation of Khasra No, 2357 only since Kharif 1970 till last and has not at all referred to Khasra No, 2358 in his statement. Mashal, the petitioner himself has just generally said that the suit land has been in his possession as a tenant since its sale. He further stated that he has been in possession of some 6 Kanals area of the suit land as a tenant under Fazal Maabood vendor who has, however, been recorded co-sharer in possession in whole of Khasra No, 2339 himself and in part of Khasra No, 2355 through Taza Gul and not in possession of Khasra No, 2358 in Jamabandi 1968-69. He has not produced any lease deed in his support. He has also not produced Khasra Girdawari relating to the suit land. Again Fard Jamabandi, Exh. P.W. 1/1, relates to the year 1968-69 recording petitioner a tenant in occupation of Khasra Nos. 2357 and 2358 as then. The petitioner was in fact supposed to prove his tenancy at three relevant times of sale, institution and decree of the suit which he has failed to prove at least in case of Khasra 8 No, 2358 and his solitary oral statement general in character cannot be accepted for a proof in the absence of the copy of Khasra Girdawari or any other revenue record that he was cultivating Khasra No,. 2358 at the relevant times.
5. In case of Khasra No, 2357 there is also a verbal statement of the tenant-pre-empter, but has been duly supported by the statement of the Patwari Halqa made on the basis of the revenue record in his possession stating that the petitioner has been the tenant in occupation of Khasra No, 2357 since Kharif 1970 till last and, as such, this fact shall be deemed proved. The learned Additional District Judge has held that the inspection of Kharif crop commences on 1st of October, each year while the sale of the suit land has taken place on 25th August, 1972 at the time the tenant-pre- emptor shall not be deemed conferred a right of pre-emption on him. M.L.R. 115 was enforced on 11th March, 1972. The legislature did not purposely confer certain rights on the tenant from Rabi 1972 as the Girdawari of the said crop has since commenced on the 1st of March. The regulation has bestowed certain rights including the first right of preemption on the tenants from Kharif 1972 under its para. 25(3). Now question for determination is as when Kharif crop is to commence. Necessarily a crop commences by the preparation of the field for cultivation C' and at the latest by the actual sowing and it ends by the harvesting of the crop. The inspection of the crop i,e, Girdawari, is carried by the Patwari Halqa soon before the harvesting of the crop and it cannot be said that' Kharif crop has commenced at then. There can be taken a general notice of the fact that Kharif crop commences in this part of the Country in June-July and since the sale has taken place on 25th August, 1972 the petitioner shall be deemed to be a tenant in occupation of Khasra No, 2357 in Kharif 1972 and to have a first right of pre-emption regarding the land in his tenancy. The learned Additional District Judge has misconstrued the point of law in this regard which merits to be set aside.
6. Regarding Khasra No, 2355 petitioner himself has given a waivering and uncertain statement as that the said Khasra number has been wrongly shown in the cultivating possession of one Taza Gul in the Khasra Girdawari for rectification of which he has moved an application and that the Girdawari has been later on shown in his name regarding the said Khasra number. He has, however, been rebutted by the Patwari Halqa who has stated that the petitioner's application for rectification of Girdawari was disallowed by the Collector and that only in Kharif 1973 he has been shown a tenant in occupation of half of Khasra No, 2355. Petitioner cannot, therefore, have a superior pre-emptive right on that basis regarding the said Khasra number, sale of which has taken place on 25th August, 1972.
7. Regarding other Khasra numbers, no Girdawari or other revenu record was produced by the petitioner nor Patwari Halqa was asked if h was a tenant in occupation and just casually he claimed to be a tenant in" occupation of the suit land in his oral statement which cannot be accepted as a proof. In support a reference is made to 1984 CLC 590.
8. Counsel for the respondent-pre-emptor referred to Fard Jamabandi 1968-69 recording Mashal, the pre-emptor-petitioner as a tenant-at-will in Khasra Nos. 2357 and 2358 under persons other than the vendor and contended that the petitioner was not covered by the definition of tenant as given in the Land Reforms Act, 1972 or the N.-W.F.P. Tenancy Act, 1950 as he was not holding the land in his occupation under the vendor at the time of its sale. M.L.R. 115 has, nowever, been found to make no such distinction. It simply confers certain rights on tenants in occupation of the land under para. 25(3). The argument is otherwise not tenable because, if suppose, a tenant holds the tenancy under a co-sharer in possession and another co-sharer makes a sale of his share in the proprietorship column will then the said tenant be not deemed to hold the land in his tenancy for the purposes of exercise of the right of pre-emption.
9. In view of the aforegoing discussion, revision petitions are partiall accepted, the judgments and decrees of the Courts below are modified, Mashal the petitioner, a tenant-pre-emptor, is granted a decree with respec to Khasra No, 2357 only on payment of Rs, 1,555. His suit with regard to the rest of the suit land shall stand dismissed and instead decreed in E favour of Fazale Rabbi, the respondent-pre-emptor. Parties are left to bear their own costs throughout.