' The brief facts leading to this revision are that the pre-emption suit filed by the petitioner Nazar Muhammad under M. L. R. 115 on the basis of rights of tenancy was decreed to the full extent of his claim of 99 Kanals on condition of payment of Rs, 2 lacs as the consideration by the A.C./Collector, Sadar Sub-Division, Sargodha. Two cross-appeals were then tiled ; one by the petitioner Nazar Muhammad on the issue of consideration money and the second by the respondents/vendees challenging the pre-emption claim of the petitioner. The learned Additional Commissioner (Revenue), Sargodha vide his judgment/decree, dated 18-3-1985, rejected the appeal of the petitioner and at the same time partially allowed the appeal of the respondents to the extent that the pre-emption decree was reduced to 61 Kanals 15 Marlas. In amending the decree, the learned Additional Commissioner held that the vendees would also be entitled to the payment of the proportionate expenses on the basis of Rs, 13,000 incurred on the transaction. Aggrieved by the judgment/decree of the learned Additional Commissioner, the petitioner has now come up in revision.
2. I have heard the learned counsel for the parties. The learned counsel for the petitioner does not want to press the issue of the price of tbe suit land determined by the lower Courts. He bases his case on the contention that according to the evidence examined by the learned trial Court the petitioner is entitled to pre-emption decree of his full claim of 99 Kanals. He challenges the findin s of the learned Additional Commissioner that 37 Kanals 5 Marlas since classified as `banjar qadeem' is to be deemed as excluded from the tenancy of the petitioner. This argument is resisted by the learned counsel for the respondent who maintains that the land classified as `banjar qadeem' cannot be considered as under the tenancy of the petitioner.
3. 1 have considered this issue. According to the entries of the Revenue record, 37 Kanals 5 Marlas though classified as `banjar qadeem' is entered under the tenancy of the petitioner. The mere style of the classification of land by itself does not constitute a valid ground for deciding as to whether or not it is to be included in the tenancy. The crucial test is that the tenant had full rights of using the land as tenant and, subject to the availability or means of irrigation, he could have cultivated this land. I would, therefore, hold that the mere fact of the land being classified as `banjar qadeem' did not justify a finding that the petitioner had no pre-emption claim in respect of this land.
Intervening in revision, I would, therefore, set aside these findings and allow the pre-emp ion claim of the petitioner to the full extent of 99 Kanals. I would, however, maintain the findings of the learned Additional Commissioner that the respondent would be entitled to additional expenditure of Rs, 13,000. The trial Court is, therefore, directed to award amended decree in respect of the entire claim of 99 Kanals on payment of Rs, 2,13,000. The balance consideration would be paid by the petitioner within a period of two months of the date of this order, failing which the pre-emption suit would be deemed as dismissed. ....100111101.