' The pre-emption suit filed by the petitioner in respect of 1 K-10 M of land on the basis of superior rights of tenancy under M L R-115 were decreed in his favour by the A.C./Collector, Pind Dadan Khan.
The judgment/decree of the A.C./Collector was however, set aside in appeal by the learned Additional Commissioner (Revenue), Rawalpindi, vide orders dated 24-3-1983, with findings that the possession of the suit land by the pre-emptorssluring the pendency of the suit was not established and further, the suit land had acquired the status of building site and, as such, was not pre-emptible. The petitioner-pre-emptor is now in revision against the orders of the learned Additional Commissioner.
2. I have heard the learned counsel for the parties. The issue that the suit land had acquired the status of building site was not taken u by the respondents in their written statement before the trial Court. No such an issue was framed during the pendency of the suit. It was, there-A fore, not available to the respondents to raise this contention in appeal nor was the learned appellate Court competent to adjudicate the suit on the basis of this contention. The fact as to whether or not the suit land had acquired the status of building site was required to he agitated by the respondents while defending the pre-emption suit. Their failure to do so was not curable by later taking this defence in the grounds of appeal. The findings of the learned Additional Commissioner even otherwise are not tenable since the suit land continues to be under cultivation, as established by the copy of the register Girdawari tendered before the Court. In view of this position, I would set aside the findings of the learned Additional Commissioner that the land is not pre-emptible on ground of having acquired the status of building site.
3. As regards the findings of the learned Additional Commissioner that the pre-emptor had failed to tender evidence of their tenancy during the pendency of the suit, these findings are also not maintainable. Unless] the pre-emptor was shown to have abandoned his tenancy, it was to be presumed that he was continuing as tenant. According to the copy of the register Girdawari shown in the Court, the petitioner continues to be in possession of the suit land.
4. In view of the findings above, I would set aside the orders of the learned Additional Commissioner and restore the decree in favour of the petitioner.