' One Mst. Bagh Roshana was owner of land represented by Khasra No, 1273, out of which she sold 240/446 shares, equal to 12 Kanals, in favour of Fazal Ahmad for Rs, 6,000. Mutation of sale, bearing No, 2711, was sanctioned by Revenue Officer on 7-8-1970. The sale was pre-empted by Zair Shah in the suit out of which this revision arises on the grounds of co-sharership, participation in the immunities and petition appendages of the suit land and contiguity. It was alleged in the plaint that at the time of sale the land owned by Mst. Bagh Roshana, as a result of consolidation proceedings, was allotted Khasra No, 1273, out of which 12 Kanals were sold in favour of the vendee, but those consolidation proceedings were not confirmed and in subsequent consolidation proceedings, which were confirmed, the disputed land was allotted Khasras Nos. 1329 and 1331 without having any effect on the pre-emptive rights of the plaintiff. A decree for possession by pre- emption of 12 Kanals of land was claimed by the plaintiff on payment of Rs, 1,000 which amount was alleged to have actually been paid by the vendee to the vendor. The suit was contested by Fazal Ahmad vendee, who claimed to have paid Rs, 6,000 to the vendor as sale consideration of the suit land, also disputing the superior right of the pre-emptor. The learned trial Judge framed following issues in the case :- "(1) Whether the plaintiff has got a superior right of pre-emption ?
0. P. F.
(2) Whether the sale consideration was actually paid/fixed in good faith ? 0. P. D.
(3) What is the market value ? 0. P. P.
(4) Relief.
' After recording such evidence as the parties wished to produce, the learned trial Judge, while deciding issue No, 3, found Rs, 7,603.20 as market 'value of the suit land. On issue No, 2 the finding of the learned trial Judge was that although the defendant had failed to prove payment of Rs, 6,000 as sale amount to the vendor, but since the market value of the suit land was more than that amount, the same would be deemed to have been fixed in good faith by the vendee as sale consideration of the suit land. While dealing with issue No, 1, the learned trial Judge held that there was no evidence on the record to show that the pre-emptor was participator in the immunities and appendages of the suit land, or had contiguity thereto and for that reason, those two grounds were not available to him for claiming preferential right over the vendee. In respect of the other ground, i,e,, co-sharership, the learned trial Judge held that although at the time of attestation of the sale mutation the plaintiff was co-sharer in the suit land (Khasra No, 1273), but after cancellation of the first consolidation proceedings and after confirmation of the second consolidation proceedings, at which the disputed land was allotted Khasras Nos. 1329 and 1331, the pre-emptor retained the qualification of co-sharership in Khasra No, 1329 only and not in Khasra No, 1331. The learned trial Judge further held that the vendee having been allotted 12 Kanals and 5 Marlas of land in those two Khasra numbers as a result of consolidation proceedings, and the suit of the pre-emptor having been instituted with respect to 12 Kanals of land only, and not more, additional 5 Marlas of land remained with the vendee, by reason of which by improving his status, by operation of law, before the institution of the suit, the vendee became co-sharer in both the Khasra numbers, thus having right superior to that of the pre-emptor. Consequently, the learned trial Judge found that the pre-emptor had no superior right of pre-emption, and for that reason, vide his judgment and decree, dated 18-9-1978, dismissed the suit instituted by him The pre- emptor filed appeal against the said decree, which was heard by the learned Additional District Judge, Nowshera, who vide his judgment dated 18-10-1980, after framing two additional issues, as mentioned hereunder, directed the trial Judge to record evidence of both the parties on these issues and submit his findings thereon together with the record to the appellate Court for decision of the appeal. The additional issues framed were :-
(1) Whether the defendant was a contiguous owner of Khasra No, 1324 on the date of institution of the suit and at the time of cancellation of previous consolidations proceedings? 0. P. D.
(2) Whether the defendant improved their (his) status before the institution of the present suit, if so, its effect ? 0. P. D.
' The finding given by the learned Civil Judge on additional issue No, 1 was in favour of the defendant and on additional issue No, 2 against him. The learned lower appellate Judge before whom appeal was pending and before whom the defendant-respondent had filed cross- objections, while agreeing with the findings of the learned trial Judge on material issues, by his judgment and decree dated 14-6-1981, dismissed the appeal, leaving the parties to bear their own costs. It is against the said decrees of the learned two Courts below that the pre-emptor has filed this revision petition.
2. S. Muhammad Shah Badshah, Advocate appeared on behalf of the petitioner and Mr. Wali Muhammad Khan, Advocate on behalf of the respondents. They were heard and with their assistance the record of the case was gone through.
3. The learned counsel for the petitioner contended that since in this case the statements made by the Patwari Halqa on different dates and the revenue record brought by him on file were confusing, the learned two Courts below, consequently, by misreading the statements and the revenue record, erred in coming to the conclusion on material issues against the petitioner-plaintiff. His contention was that the petitioner-plaintiff was a co-sharer in the suit land at the time of its sale in favour of the respondent-defendant and also at the time of the decision of the suit by the first Court as well as the appellate Court, and for that reason, he had preferential right of pre-emption over the respondent-defendant who did not possess this qualification. He further contended that the petitioner-plaintiff had instituted suit to pre-empt the sale which took place in favour of the respondent-defendant by Mutation No, 2711 attested on 8-7-1970 and by doing so he sought himself to be substituted for the respondent-defendant in exercise of his superior right of pre- emption. In this manner, the learned counsel contended, the pre-emptor would get whatever area was found to be in the hands of the vendee as a result of consolidation proceedings, and if the area was less than what was sold, the pre-emptor would get less area, and if the area was more, then the pre-emptor would get mote area. This exactly would, in the event of success, mean the substitution of the pre-emptor for the vendee and would be in accord with the Law of Pre-emption.
When this principle was adhered to, the learned counsel contended, the petitioner-plaintiff, in the event of his success, by substitution, would get a decree of 12 Kanals 5 Marlas and 2 Sarsais of the land which had fallen to the lot of the respondent-defendant in consolidation proceedings as purchaser of the pre-empted land. The learned counsel submitted that the findings of the learned two Courts below in non-suiting the petitioner-plaintiff, being the result of misreading of evidence and misapplication of law, were not sustainable. The learned counsel for the respondent, however, argued that the claim of the petitioner-plaintiff was for 12 Kanals of land which he pre-empted in this suit and this much area of land he claimed, by way of pre-emption even in his statement recorded after remand. The petitioner-plaintiff. The learned counsel contended, could not be given a decree for the area more than what he claimed in his suit and in this way the respondent- defendant would continue to remain owner of 5 Marlas and 2 Sersais of land in both the disputed Khasra numbers, thereby becoming able to defeat the suit instituted by the petitioner-plaintiff on the basis of co-sharership, which qualification, at the most, the petitioner-plaintiff could advance in his favour. The learned counsel contended that it was on this ground that the suit of the petitioner-plaintiff was thrown out by the learned lower appellate Judge, whose finding on the issue relating to superior right of pre-emption, being neither the result of misreading of evidence nor that of misapplication of law, was unquestionable.
4. I have considered the arguments of the learned counsel for the parties in the light of evidence brougnt on record. The first question to be determined is whether by claiming a decree for possession, by preemption, of 12 Kanals of land out of old Khasra No, 1273 and new Khasra Nos. 1329 and 1331 the petitioner-plaintiff has diseutttled himself from getting the decree because the respondent-defendant, having been allotted 12 Kanals 5 Marlas and 2 Sersais of land in consolidation proceedings, would, even if a decree of 12 Kanals was passed in favour o petitioner- plaintiff, remain co-sharer in the disputed Khasra numbers by owning tnerein 5 Marlas and 2 Sersais of land, thereby improving his right equal to that of the pre-emptor. Both the learned Courts below have answered this question in the affirmative. In my view, answer to this question is dependant upon answer to another question, i,e,, whether the claim of the petitioner-plaintiff would be deemed as relating to a decree for possession of 12 Kanals of land and in event of success, would he be granted a decree of that much area, and not more, or by way of substitution he would get a decree for the entire area which fell to the share of the respondent defendant (vendee) in consolidation proceedings as purchaser of the pre-empted land.
5. The undisputed fact is that by Mutation No, 2711, attested on 7-8-1970, 12 Kanals of land out of area then represented by Khasra No, 1273, which as a result of subsequent consolidation proceedings was assigned Khasras Nos. 1329 and 1331, was sold in favour of respondent-defendant.
The petitioner-plaintiff, in this suit, pre-empted that sale and since the area sold through sale mutation was specifically mentioned as 12 Kanals, so he in this suit claimed a decree for possession of that area. The examination of the plaint as a whole would, however, show that the petitioner-plaintiff claimed his substitution for respondent-defendant on the ground that he had superior right to pre-empt the land. Looking at the substance and not the form, this prayer would be deemed to extend to the entire area which fell to the share of the respondent-defendant as a result of consolidation proceedings. In event of success, therefore, th petitioner-plaintiff, by way of substitution, would get decree of 12 Kanals 5 Marlas 2 Sersais of land which in consolidation proceedings fell to the B share of respondent-defendant (vendee) ; there being no allegation nor evidence on the record to show that the excess area was allotted to him in lieu, or because, of some other land of which he was owner. When such be the result, then the question of the respondent-defendant remaining owner of 5 Marlas 2 Sersais of land in disputed Khasra numbers would not arise. Even otherwise, if 5 Marlas 2 Sersais of land in disputed Khasra numbers had remained with the respondent-defendant, he could not have defeated the claim of the petitioner- plaintiff on that basis as till the decision of the suit his right to retain that area would not have become indefeasible and being sub judice could not have conferred upon him co-sharership in Khasra numbers in suit so as to become equal in status to that of the petitioner-plaintiff. The law on this point, which the learned two Courts below failed to notice, stands concluded by a Full Bench authority of this Court in Saadullah Khan and 3 others' case (1), which has been approved by the Supreme Court in Ahmad Khan's case (2). In view of this finding the co-related question also stands answered in favour of the petitioner-plaintiff. Both the learned Courts below, having failed to notice the law laid down by this Court on the material points involved in this case, referred to above, committed error patent on the face of the record, thus calling for interference by this Court in the findings reached by them. The findings of the two Courts below on these points are, therefore, not sustainable.
6. The question whether the petitioner-plaintiff was possessed of superior right of pre-emption, yet remains to be settled. The cumulative effect of the statements given on different dates by `Patwari Halqa' was that the petitioner-plaintiff was co-sharer in both the Khasra numbers in suit, having purchased it earlier than the respondent-defendant, and respondent defendant was not possessed of this qualification, his name having been entered in Khatoni on the basis of sale which was pre-empted by the petitioner-plaintiff. This fact was also evident from the entries made in the revenue record (Exh. P. W. 1/3, Exh. P. W. 1/4) brought on file. Consequently, I would hold that the petitioner-plaintiff had a superior right to pre-empt the land sold in favour of the respondents- defendant. The findings of the learned two Courts below on this issue are not sustainable, having been reached by misreading and non-reading of evidence and misconstruction of law.
' The suit of the plaintiff is decreed.
(1) PLD 1975 Pesh. 218 (2) PLD 1981 SC 148