1. ' This second appeal is directed against judgment and decree, dated 24-7-1984 of learned Additional District Judge, Gujrat affirming the judgment and decree of the trial Court dated 9-1- 1983 whereby the plaintiff's suit for. possession by pre-emption in respect of land in dispute was dismissed. Land measuring 1 Kanal and 10 Marlas comprised in Khasra Nos. 1726 and 1801 was sold by Nawab son of Hassan Muhammad to Muhammad Zaman son of Lal Khan for Rs.25,000, vide Registered Sale-Deed, dated 15-10-1978. Fazal son of Said Muhammad filed a suit for pre-emption against the vendee-defendant in respect of the sale of land above-noted. Right of pre-emption was claimed on the ground of being collateral, a co-sharer in the land, owner in Patti and the revenue estate. Vendee resisted the suit, filed written statement, and took up a preliminary objection that he being in possession of the land as non-occupancy tenant prior to the date of sale in his favour was protected under para. 25 of the Land Reforms Regulation 115 of 1972 as amended.
2. Assessm ent of the suit for the purposes of court-fee and jurisdiction was also objection to.
3. Averments made in the plaint on merits were also disputed. Pleadings of the parties gave rise to the following issues:-
(1) Whether the plaintiff is estopped by his conduct from filing this suit? O.P.D.
(2) Whether proper court-fee has not been paid? O.P.D.
(3) Whether the plaintiff has superior right of pre-emption as compared to the defendant? O.P.P.
(4) Whether the sale price of Rs.25,000 was fixed in good faith and was actually paid, by the defendant? O.P.D.
(5) If issue No.4 is not proved what is the market value of the land? O.P. Parties.
(6) Whether the defendant is entitled to recover the registration charges from the plaintiff, if so to what extent? O.P.D.
(7) Relief.
4. ' Parties produced oral as well as documentary evidence in support of the issues raised. Vide judgment and decree, dated 9-1-1983, learned Civil Judge First Class, Kharian dismissed the plaintiff's suit. Plea of estoppel was not proved under issues Nos.4- and 5 it was observed that the sale consideration of Rs.25,000 was actually fixed in goiod faith and paid to the vendor as the sale price. Issue No.6 Was found against the vendee/defendant for lack of evidence. The Court under issue No.2 found the court-fee deficient. As regards superior right of pre-emption, the trial Court, on appreciation of evidence, found the defendant/vendee in possession of the suit land as a tenant prior to the date of sale in his favour. The plaintiff, therefore, was found to have no superior right of pre-emption against him. In the result of findings issues Nos.2 and 3, the suit as stated above was dismissed. Plaintiff preferred appeal in the Court of District Judge, Gujrat. The appeal was entrusted for decision to learned Additional District Judge, Gujrat. Vide judgment and decree, dated 12-7- 1984, finding no merit in the appeal, the learned Additional District Judge dismissed the same. Both these judgments of the Courts below, have been brought under challenge in this civil appeal.
2. I have heard learned counsel for the appellant and examined the trial Court's record requisitioned .to evaluate the submissions made at the bar. Learned counsel has contended that the vendee/defendant was not proved to be in possession of the suit land prior to sale. The Courts below have grossly misread the evidence while holding him to be in possession as tenant before the sale was made in his favour. The admission made in the statement of Fazal, plaintiff P.W.2 stating that Zaman was in possession of the suit land as tenant prior to sale was torn out of context and by itself was not sufficient to warrant a finding in favour of the vendee. Similar is the position with regard to the statement of Muhammad Hussain P.W.1 who also admitted that the plaintiff was in possession of the land as tenant. Learned counsel contended that even if it be assumed for sake of arguments that the vendee was in possession of the suit land prior to sale even then he had not proved by convincing evidence that he continued to be so at the time of sale, at the date of suit, and the date of the decision in his favour. Learned counsel stated, relying on precedents, that it is well-settled proposition of law that a tenant in order to succeed in the claim for pre-emption must prove that he enjoyed the superior qualifi cation at the three crucial dates. In the case under consideration he has singally failed to do so. It has further been contended that the defeated plaintiff had applied for additional evidence under Order XLI, rule 27, C.P.C. before the appellate Court. Without disposing of the application seeking permission to adduce additional evidence and even not attending to it in the appellate judgment, the appeal has been disposed of The learned appellate Judge was duty bound to attend to this prayer of the plaintiff. Decision of the civil appeal, without making any order on the petition has prejudiced the case of the appellant.
3. As stated, in the preceding paragraphs, the claim for preemption was based on several grounds being a collateral, co-sharer and the owner in the estate in Patti. Defendant resisted the claim, and relied on the ground of being non-occupancy tenant in occupation of the suit land prior to sale.
5. Parties produced evidence. After an examination of evidence both oral and documentary, both the Courts below concurrently concluded that the defendant/vendee was in possession of the suit land prior to sale and was entitled to rely on paragraph 25(2)(d) of the Land Reforms Regulation 115 of 1972 to protect his sale. In this, the Courts, relied on, the admission made in the statement of P.W.1 and Fazal plaintiff P.W.2. Entries in Khasra Girdawri, also supported the defendant. Fazal, plaintiff, when appeare4 as a witness, clearly and in unequivocal terms admitted that Zaman- vendee was in cultivating possession of the land as non-occupancy tenant, since prior to the sale. in his favour.
6. His this admission found support from the testimony of P.W.1 his own witness. Khasra Girdawari Exh.P.3 also showed Zaman's possession since Kharif 1977. These admissions on the plaintiff's side were supported by the defendant's evidence. The contention, that, had the vendee been in possession of the land prior to sale, it would not have been mentioned in the Registered Sale Deed Exh. P.2 that the possession was delivered to him on sport has no real force in it. Apart from what legal weight is attached to such recitals relating to delivery of possession, the plaintiff did not confront the defendant with the said recital when he appeared as a witness in the case. Had it been done, the vendee may have been able to explain. Be that as it may, when the plaintiff himself is admitting the claim of the defendant on the ground of tenancy, it cannot be negated on a mere recital in the sale-deed regarding delivery of possession on site. Such .recitals are usually made in almost every deed. The contention that the defendant had failed to prove his possession on three crucial date, suffice it to say, that it was not necessary for him to do so. The test suggested no doubt is applicable to the plaintiff/pre-emptor who has to retain his superior qualification on three crucial stages. This may not apply to the vendee. If the plaintiff has not superior right of pre- emption qua the vendee at the time of sale he is not entitled to succeed. In the case under consideration, both the Courts below have found and rightly so that the vendee was in possession as tenant at the time when he purchased the property. This concurrently concluded finding of face based on proper appreciation of evidence is not open to re-examination and scrutiny in second appeal. I would have attended to the complaint regarding non-disposal of an application for additional evidence made before the learned appellate judge, had there been a genuine ground for it. In this case the plaintiff himself admitted the status of the vendee stating that he was in possession as tenant. In this, as stated above, he was supported by his own witness. This admission coming right from the plaintiff, unless properly explained which has not been done in this case was sufficient to warrant a finding in favour of the vendee.
7. ' This suit was laid before the civil Court on 25-11-1978. Para. 7 of the plaint, assessed the suit both for purposes of court-fee and jurisdiction at Rs.200. The assessment so made false below Rs.2,000.
8. Jurisdictional value in the pre-emption suit, therefore, falling belo Rs.2,000, the second appeal was not competent under section 102 o the Code of Civil Procedure. Only a revision was competent scope whereof is very limited. Considering the controversy arising for decision in this civil appeal from all angles I have not been able to find any merit therein. This appeal, therefore, fails and is dismissed in limine.