' The suit out of which this revision petition arises was instituted by eRoshan Khan against Haji Said Khan for a decree for possession, by preemption, of 18/32 share out of Khasra No, 1227, situated in Garhi Faizullah, Tehsil Nowshera. The pre-emptor alleged in the plaint that the suit land was sold by the vendors in favour of Haji Said Khan for a sale consideration of Rs, 15,00 and since he possessed all the qualifications mentioned in section 12 of the Pre-emption Act, which the vendee did not possess, he had a right to pre-empt the sale. The pre-emptor died during the pendency of the suit and his legal representatives were thus brought on record.
2. The vendee-defendant Haji Said Khan, despite service, did not appear in Court and was, therefore, placed ex parte. On 15-3-1977, however, one Noor Muhammad applied to the trial Court that he having obtained from the Court of Civil Judge, Nowshera a decree in his favour on 26-10- 1976 in respect of the suit land was a necessary party to the suit and may, therefore, be impleaded as defendant. This application was contested by the pre-emptor by denying the facts mentioned therein. The learned trial Judge, however, while allowing' the application of Noor Muhammad impleaded him as defendant in the suit. He alone contested the suit on many grounds. The learned trial Judge put the parties to the following issues
(1) Whether the plaintiff has a cause of action?
(2) Whether the plaintiff is estopped to bring the present suit?
(3) Whether plaintiff has wilfully forfeited his right of pre-emption?
(4) Whether Noor Muhammad defendant No, 2 has improved the suit land, if so, to what extent and with what effect?
(5) Whether plaintiff has got a superior right of pre-emption?
(6) Whether the defendant No, 2 is tilling the disputed land and has got a superior right of pre- emption?
(7) Relief.
3. After recording such evidence as the parties wished to produce and after hearing the arguments of the learned counsel for the parties, the learned trial Judge, by discussing issues Nos. 1, 5 and 6 together, held that the preemptors/plaintiffs had no cause of action and their qualification to pre- empt was not superior to that of Noor Muhammad defendant No, 2, who was a tenant of the suit land. Issues Nos. 2 to 4 were decided by the learned trial Judge against the defendant No, 2, who could not bring cogent evidence on the record to support the pleas raised by him. In the result, the learned trial Judge, vide his judgment and decree, dated 29-5-198U, dismissed the suit instituted by preemptors/plaintiffs, leaving the parties to bear their own costs.
4. The pre-emptors/plaintiffs went up in appeal and the learned Additional District Judge, agreeing with the finding of the learned trial Judge on issues Nos. 1, 5 and 6, vide his judgment and decree dated 9-9-1980, dismissed the appeal, leaving the parties to bear their own costs.
5. Not satisfied with the judgment and the decree of the learned two Courts below, the pre- emptor-plaintiffs have filed this revision petition.
6. Z. Mahfooz Khan, Advocate appeared on behalf of the petitioners and Mr. Attaullah Khan, Advocate appeared on behalf of respondent No,
2. They were heard and the record of the case perused with their assistance.
7. The first contention of the learned counsel for the petitioners was that the professed transfer of the suit land in favour of Noor Muhammad (respondent No, 2) was nothing but a sham transaction and that the suit in which decree was obtained by him against Haji Said Khan (respondent No, 1) was collusive and fictitious. The learned counsel suggested that for that reason the said transfer and the decree may be ignored. This contention was, however, neither raised before the learned trial Judge, nor before the learned lower appellate Court, nor was this plea specifically taken by the petitioners in the application whereby they contested the claim of Noor Muhammad (respondent No, 2) for becoming party to the suit. No issue on this point was framed by the learned trial Judge, nor was any evidence in this respect led by the parties before the learned trial Judge, except that in her statement Mst. Shafa Jan stated that the purchase of the suit land by Noor Muhammad was fictitious. Not only that, but the pre-emptor (Roshan Khan) had himself on 6-1-1977 made an application to the Court, wherein he stated that the first vendee was transferring the suit land in favour of Noor Muhammad and that he may be restrained from doing so. A notice of this application was also sent to the other side but it appears not to have been pressed later. In such circumstances, the learned counsel for the petitioners could not be permitted to raise for the first time at this stage, this plea, for its determination required evidence of the parties which at this stage could not be permitted to be adduced.
8. The learned counsel for the petitioners next contended that the petitioners being co-sharers in the suit Khasra had a superior right of preemption over Haji Said Khan vendee, who did not possess that qualification. The learned counsel further contended that on the same basis the petitioners had a superior right even against Noor Muhammad respondent, who was not the tenant of the suit land on the date when the transaction of sale in favour of Haji Said Khan respondent was completed. Elaborating his arguments further, the learned counsel contended that the pre- empted sale. Had been completed earlier than the day it was reported to Patwari, Helga, who on its basis entered on 29-3-1976 sale Mutation No, 1195 in favour of Haji Said Khan. The learned counsel argued that when on 26-4-1970 the statement of the ladies/vendors was recorded they confirmed having sold the suit land in favour of Haji Said Khan vendee, who had earlier reported the sale to Patwari Helga on 29-3-1976. According to take learned counsel, the entries made in column Nos. 12 and 14 of the sale mutation, in absence of other evidence on the record to the contrary, were .
Sufficient to establish that the transaction of sale had been completed between ..He vendors and Haji Said Khan vendee before 29-3-1976. On that date, the learned conned for the petitioners urged, Noor Muhammad respondent was not the tenant of the suit land, even if entries made in Khasra Girdawari with respect to his tenancy were regarded to be correct. He could, at the most, be regarded as tenant from the date when crop inspection of Rabi 1976 was made by Patwari Helga on 26-4-1976. The learned counsel argued that since Noor Muhammad was not the tenant of the suit land on the date of completion of sale transaction in favour of Haji Said Khan, he could not have the first . Right of pre-emption in respect of that sale, nor could he on that basis resist the claim of the pre-emptor who was a co-sharer in the suit Khasra on that date. The learned counsel for the petitioners also contended that the learned lower appellate Court was wrong in holding the view that Noor Muhammad had to be taken to be in possession of the suit land, as tenant thereof, from the day when the wheat crop was sown by him. He maintained that this view of the learned lower appellate Court was contrary to the law laid down by the superior Courts: He urged, therefore, that the decisions of the two Courts below, arrived at as they were by misconstruing the law,. Were not sustainable. In support of his arguments the learned counsel cited 1981 SCMR 1183, PLD 1956 SC 309. PLD 1961 (W. P.) B J 34, PLD 1974 Pesh. 51 and PLD 1976 Rev.
30.
9. The learned counsel for the respondents, however, argued that the date on which the sale mutation was entered by. Patwari Helga was not material for the purpose of judging the merits of the respective qualifications possessed by the pre-emptor and Noor Muhammad respondent. He contended ..That in that respect the date of attestation of sale mutation was material." He a*.
9911tcatied that according to the entries-mad; in Khasra Girdawari Noor Muhammad respondent was in possession of the suit land as a tenant prior to the date of attestation of sale mutation, which fact was certified by Patwari Helga who made on 26-4-1976 crop inspection. The learned counsel argued that the sale-of the land in favour of Haji Said Khan stood completed on the date of attestation of sale mutation, and not before. He argued further that if for any reason the date of attestation of sale mutation was not to be regarded as the date on which the pre-empted sale stood completed then such sale would he deemed to have been completed, at the earliest, on the day when the statement of the ladies/vendors was recorded by Girdawar circle. He submitted that from the perusal of the sale mutation it was clear that the statement of the ladies/vendors was recorded by Girdawar circle on 26-4-1976. It was thus evident that the sale transaction in favour of Haji Said Khan stood completed on 26-4-1976, and not before.
That was also the date on which entry in respect of the possession of Noor Muhammad respondent as tenant of the suit land was made by Patwari Helga in Khasra Girdawari for Rabi 1976. The learned counsel urged that since 26-4-1976 was the date of the completion of the sale transaction between the vendors and Haji Said Khan and was also the date on which Noor Muhammad respondent was certified by the Patwari Helga to be the tenant of the suit land, Noor Muhammad respondent, being a tenant, was, therefore, having a superior right, on the said date, over the pre- emptor who on that date was only a co-sharer. The learned counsel maintained that for that reason Noor Muhammad respondent could successfully non-suit the pre-emptor. The learned counsel submitted that the findings of the two Courts below were, therefore, unassailable.
10.The learned lower appellate Court took the view that Noor Muhammad respondent was to be taken as a tenant of the suit land from date of sowing of Rabi crop. It was consequently held by that Court that Noor Muhammad respondent, having come to possess the suit land as a tenant earlier than even the date of entry of the sale mutation, was having superior right of pre-emption over pre-emptor who was only a co-sharer in the suit Khasra. This finding of the learned lower appellate Court, being contrary to the law laid down in PLD 1956 SC (Pak) 309 and 1981 SCMR 1183, was unsustainable. Once this finding disappears, then the principle of con- current findings becomes inapplicable to the case. The material date for the purpose of finding out the tenancy of Noor Muhammad respondent in respect of the suit land, according to the dictum of the Supreme Court in the case referred to already, was the date on which crop inspection for Rabi 1976 was made by Patwari Halqa. That date was 26-4-1976. Noor Muhammad respondent was, therefore, to be regarded as the tenant of the suit land from that date and not earlier. The sale mutation was, however, entered earlier than that date, and if it were to be held that the sale transaction had been completed earlier than the date of entry of sale mutation, then Noor Muhammad respondent, not being a tenant on that date, was not having a right superior to that of the pre-emptor.
11.With respect to the question as to on which date the sale transaction stood completed, I have given my anxious consideration to the arguments of the learned counsel for the parties and the evidence placed on record. In my view the arguments of the learned counsel for the petitioners carry weight. The pre-empted sale was oral and the sale Mutation No, 1195 was entered oh 29-3- 1976 at the instance of Haji Said Khan vendee, The report in respect of the sale transaction appears not to have been entered in (Roznam. Cha Waqiati), or otherwise, its reference, at least, would have been made in column 12 of the mutation register. No other evidence was led at the trial to prove the exact date on which the sale transaction was completed between the vendors and the vendee.
In the circumstances, the determination of the date on which the sale transaction had been completed would depend on the entries made in the sale mutation. It is a matter of common practice that after the oral sale affecting landed property is completed, it is reported to Patwari Halqa for incorporating the same in "Roznamcha Waqiati' and mutation register. It is obligatory for Patwari Halqa, under section 42 of the Land Revenue Act, 1967, to enter in `Roznamcha Waqiati' and mutation register the reports made to him about the acquisition of right in an estate. He is not expected or required by law to enter in the said revenue record the promises made relating to such acquisitions. Ordinarily, therefore, the acquisition must precede the report or the entry in either of the said documents, and there cannot be an acquisition unless there has come into being a concluded contract between the parties. In my view, therefore, the sale transaction in this case, in absence of other evidence, had been completed on any day earlier than the date on which it was reported by the vendee to Patwari Halqa, who on its basis made entry thereof in the mutation register. That date, already said, was 29-3-1976, Later, when the statement of ladies/vendors w recorded by Girdawar circle on 26-4-1976, they also confirmed having sold the suit land in favour of Haji Said Khan. It was on 27-4-1976 that the sale mutation was sanctioned by the Revenue Officer. While taking this view, 1 am supported by the decision of this Court in Rehmat Shah's case
(1) and the decision of the Chief Land Commissioner in Mst. Kish war Sultana's case (2). This finding is, however, limited to the point under consideration and may not be taken to be applicable in broader sense.
12. It was thus established on the record that the sale transaction in respect of the disputed land was completed before 21-3-1976. On that date, as already held, Noor Muhammad respondent was not the tenant of the suit land. His tenancy started from the date when Rani crop was inspected by Patwari Halqa on 26-4-1976. Consequently, he was not having any right to pre-empt the land on the day when the sale transaction was completed, The petitioners, being co-sharers in the suit Khasra, had a superior right to preempt the sale. Their suit, therefore, merited to be decreed and the learned two Courts below erred in law in not granting them a decree for possession of the suit land by pre-emption.
13. As a result of discussion above, while accepting this revision petition, I hereby set aside the judgments and the decrees of the two Courts below an E grant to the petitioners/plaintiffs a decree for possession of the suit land by pre-emption on payment of Rs, 15,000 as pre-emption money.
The whole of the pre-emption money is said to be in deposit. Since the difficult question of interpretation of law was involved, the parties are directed to bear their own costs.