' Suit No.184/1 of 1976 was instituted by Jamshed and Asal Sher Respondents Nos.3 and 4, in the Court of Civil Judge, Swabi, District Mardan on 28-7-1976 against the petitioners for possession by pre-emption of agricultural land measuring 1 Kanal 18 Marlas comprising of Khasra numbers 6702, 6703, 6704 and Kanal 14 Marlas comprising of Khasra numbers 6700, total area of 3 Kanals 12 Marlas, situated in village Kalu Khan, Tehsil Swabi, District Mardan. Subsequently another Suit bearing No.48/1 was also instituted by Abdul Wasih and Shah Islam (respondents 1 and 2) on 30-7- 76 pre-empting the aforesaid sale which was effected on the basis of sale-deed registered on 21- 8-1975 in favour of the petitioners. Both the suits were consolidated by the trial Court vide order, dated 15-10-1976 and the proceedings were continued in Suit No.184/1 of 1976.
2. The learned trial Court after recording the evidence of the parties came to the conclusion that Abdul Wasih and Shah Islam pre emptors (respondents 1 and 2) were the co-sharers in the suit Khata whereas Jamshed Khan and Asal Sher were contiguous owners of the land in suit. Therefore, the learned Civil Judge vide judgment, dated 26-9-1980 decreed the suit of respondents 1 and 2.
Against the aforesaid decree an appeal was filed by the vendee-petitiones before the Additional District Judge, Mardan at Swabi but it was dismissed on 21-6-1980. The learned Additional District Judge also came to the conclusion that respondents Nos.1 and 2 being co-sharers in the suit Khata had superior right of pre-emption. against the rival-pre-emptors who were only contiguous owners. The vendee-petitioners have claimed superior right of pre-emption on the ground of being tenants in cultivating possession of the land in suit but their contention was negatived by both the learned Courts below. The learned trial Court held that from the lease-deed placed on file No.184/1 it appeared that only one of the vendees was holding the land as a lessee and he having joined the other vendees with him had also lost his superior right of pre-emption. The lease-deed though unregistered and not exhibited on the file was taken into consideration. The learned Additional District Judge also affirmed that the principle of 'sinker' was applicable and the vendee-petitioners could not claim superior right of pre-pmption.
3. From the perusal of the evidence available on the file, it is clear that findings thus arrived at by the learned lower Courts suffer from misreading of evidence. The copy of Khasra Girdawari from 1971 to 1975 shows that Zari Bahadur, Raidool Khan and Sarzamin (vendee-petitioners) are in possession of 3 Kanals 12 Marlas out of 13 Kanals 15 Marlas comprising of Khasra number 6700 as lessees and after the registration of the sale deed in their favour on 21-8-1975 they are shown in possession of the land as vendees. The entries in the Khasra Girdawari are made by the Patwari in the discharge of his official duties and thus can be looked into under section 35 of the Evidence Act.
Shah Islam (respondent No.2) in his statement as. D.W.3 has also admitted that the vendees were in possession for the last 2/3 years and they were in possession of the land since prior to the sale in their favour. Thus, it is clear that the vendee-petitioners were in possession of 3 Kanals 12 Marlas since Kharif 1971 upto the time of the sale in their favour and they being in cultivating possession of the land had superior right of pre-emption as against the pre-emptors. The.lease-deed relied upon by the learned Courts below is un-registered and has not been exhibited on the file.
Moreover, in the lease-deed Zari Bahadur vendee is shown as lessee for two years only i.e from 197D to 1972, but on the contrary in the Khasra Girdawari all the three vendees are shown in cultivating possession of the land since Kharif 1971 till the time of the sale in their favour. Therefore, in these circumstances, the learned lower Courts were not justified to ignore the entires in the Khasra Girdawari and other evidence available in the case. It is obvious that the lease-deed could not have been taken into consideration which was not exhibited nor was it registered according to law. Even otherwise the lease-deed being only for a period of two years from 1970 to 1972 would not conclusively prove that all the three vendees were not in possession of the land during the relevant period.
4. However, from the entries in the Khasra Girdawari it appears that the vendee-petitioners were in possession of 3 Kanals 12 Marlas out of Khasra No. 6700 which measures 13 Kanals 15 Marlas. But according to the sale-deed only 1 Kanal 14 Marlas, were sold out of this Khasra number to the petitioners, and they, being in cultivating possession of this area, could successfully defeat the pre- emption suit in so far as it related to this land. Admittedly the area sold from the other Khasra numbers i.e. 6702, 6703 and 6704 was not in possession of the vendee-petitioners and hence the rival-pre-emptors ( repondents 1 and 2) could successfully maintain their suit regarding this area on the ground of being co-sharers in the suit Khata.
5. The learned counsel for respondents 1 and 2 referred to the Land Reforms (N.W.F.P. Amendment)
Ordinance, 1981 (Ordinance XI of 1981) enforced on 28th of September, 1981 and contended that in view of the insertion of clause (13) in paragraph of the Land Reforms Regulation, 19g2, the word 'tenant' does not include the lessee, whether cultivating the land himself or through another person.
But this argument cannot be successfuly maintained as the amendment in question was brought about on 28-9-1981 and there is nothing in the amending Ordinance to show that it was given retrospective effect. Thus, it is clear that it would not affect the rights already accrued before the enforcement of the said Ordinance. It is evident that the vendees, though lessees, were cultivating the land themselves and not through other persons. Prior to the amendment in question only those lessees were treated as tenants, under the Land Reforms Regulation, 1972, who were in clutivating possession and did not get the land cultivated through the other tenants. It is well-established that if an Amending Ordinance affects a right in existence at the passing of the Ordinance, it is more than a matter of procedure and would operate only prospectively unless different intention is expressed. Keeping in view this principle, the argument of the learned counsel for respondents 1 and 2 that the Amending Ordinance (N.W-F.P. Ordinance XI of 1981) would be applicable to the facts of the present case, cannot prevail.
6. For the aforesaid reasons, the learned Courts below were not justified in granting the pre- emption decree in tavour of respondents 1 and 2 regarding the area of 1 Kanal 14 Marlas comprising of Khasr No. 6700. Therefore, the judgments. and decrees of the lower Court are modified and the suit of the plaintiffs-respondents 1 and 2 in decreed to the extent of 1 Kanal 18 Marlas out of Khasra Nos. 6702, 6703 and 6704 on payment of Rs.10,555.55 as pre-emption money. Respondents. Nos.1 and 2 are to deposit the pre-emption money in the trial Court within a month if not already deposited. This revision is accepted to the extent mentioned above with no order as to costs.