' This petition which arises out of a pre-emption suit raises two points; first, plaintiff's right of pre- emption, second, price payable for the property in suit. Suit was dismissed on 9-2-1983, by Collector; Talagang. It was found that plaintiff had no right of pre-emption. Except for the superior right, Collector did not record his decision on issues 2 to 4, which related to fixation and payment of sale price, market value of the property and whether the right of pre-emption based on tenancy rights was opposed to Shariat Law. Against the dismissal, pre-emptor preferred an appeal (Appeal No. 49 of 1983). It was accepted on 21-5-1983 by Additional Commissioner (Revenue) Rawalpindi, who found that the plaintiff as tenant had a clear right of pre-emption and gave him decree for the land in suit, on payment of Rs.12,779 to be paid within one month from the date of his order, failing which it was ordered that the suit shall stand dismissed. Against the decree passed by the Appeal Court. Ghulam Sarwar filed a revision before the Board of Revenue. Revision did not succeed and was dismissed on 28-8-1984.
2. It is contended by Malik Muhammad Jaffar, learned counsel for the petitioner that neither the superior right was established nor the price payable for the land in suit was correctly determined.
In regard to the first point, learned counsel referred to entries in revenue papers and argued that plaintiff had not been able to maintain his possession on three crucial dates viz. Date of sale, suit and decree which in this case would be the date of decision by learned Additional Commissioner.
In regard to the second point, learned counsel argued that as the right extended to a part of the property sold, Courts below were obliged to determine the market value of the property to which the right extended and could not decree the suit on payment of the proportionate price.
Particularly when the land in suit was different in quality and was superior to the other land sold to the vendee. Maulvi Sirajul Haq, learneo counsel for contesting respondent joined issues with the petitioner's counsel and submitted that both the points, after having been properly settled by competent forums set up under the special law, were not open to further scrutiny in constitutional jurisdiction.
3. In regard to the first point, I do not agree with the learned counsel for the petitioner but in regard to his second contention, he has a strong point to make 152 Kanals and 11 Marlas of land situate at Mauza Dandi comprised in Khasras 221, 301, 341, 2044, 2079, 2562, 2566, 1254 and 1193, was sold by Ghulam Hussain to Ghulam Sarwar, for Rs.1,20,000 vide deed of sale registered on 15-2-1981. Haq Nawaz as tenant in cultivatory possession of Khasra No. 1254 only, (16 Kanals and 5 Marlas) pre- empted the sale and brought a suit against. The vendee in the Court of Assistant Commissioner/Collector, Talagang. It was alleged that he was tenant of the land is suit for past 40 years and that the market value of the property did not exceed Rs.4,000. Defendant resisted the suit. Conflict is reflected in following issues raised by the Collector:-
(1) Has the plaintiff superior right of pre-emption of land through pre-emption as against the defendant? O.P.P.
(2) Was the amount of sale price i.e. Rs.1,20,000 paid and fixed in good faith? O.P.D.
(3) If issue No.2 is not proved, then what is market price of the suit land at the time of sale? O.P.
Parties.
(4) Was the right of pre-emption of the plaintiff on the basis of the tenancy against Shariat law and what was the effect on the suit land?
(5) Relief.
4. On examination of evidence led before it learned Collector found that plaintiff's right to get the land was not established. Issues 2 to 4, however, were not decided. This decision was reversed by Appeal Court which further was maintained by Revisional Court. Sale took place on 15-2-1981. Vide Exh.P.1, copy of Jamabandi for the year 1977-78 possession of the pre-emptor was recorded as non-occupancy tenant of the suit Khasra. Copies of Khasra Girdawari placed on record reveal that possession of the pre-emptor continued, to be recorded as tenant till Kharif crop in 1980. In Rabi 1981 entry in regard to the possession of pre-emptor suffered a change and in place of Haq Nawaz name of one Mst. Sharifan was introduced as tenant of the vendee. Crop Rabi 1981 was inspected and recorded on 8-4-1981. In the Kharif 1981, possession of Ghulam Sarwar vendee was recorded on 15 Kanals and some Marlas whereas the remaining one Kanal was shown in possession of one Ghulam Hur who had meanwhile purchased it from Ghulam Sarwar for Rs.5,000. Haq Nawaz appeared at the trial and deposed that he was in possession of the suit Khasra from the period much prior to the sale and maintained his uninterrupted possession till the date of his statement.
Statement in regard to his possession also received support from the testimony of Amir Khan D.W.2.
Neither Mst. Sharifan whose possession was recorded in Rabi 1981 nor Ghulam Hur who was shown to be in possession of one Kanal of land in Kharif 1981 appeared at the trial. Reasons for the change of possession from Haq Nawaz to Sharifan Rabi 1981 are not available on record. In the circumstance, it was rightly found by the Courts below that Haq Nawaz was in possession of the suit land on all the relevant dates and was still in its possession. Change in the revenue papers appears to have been manoeuvred at the instance of Ghulam Sarwar vendee so as to dislodge the claim of the tenant/pre-emptor. Proper procedure laid down for altering an entry existing in revenue papers does not appear to have been followed. Necessary corollary of this would be that the previous entry which existed in the name of Haq Nawaz shall be deemed to continue and subsist. On examination of the oral evidence in the light of entries in revenue papers, it has been held that plaintiff was tenant of the suit property. It is not the case of the petitioner that Haq Nawaz was ousted from the suit land through legal means or otherwise. It is also not the case that he himself surrendered his possession. On the other hand, plaintiff maintained that he was still in possession. Finding of fact which is based on proper appreciation of evidence recorded by the Courts of competent jurisdiction entrusted with the task of deciding the pre-emption suits, cannot be lightly brushed aside in constitutional jurisdiction. Therefore, this finding of fact, I shall accept as correct and hold that right of pre-emption has been rightly found to vest in the pre-emptor. This disposes of the first contention.
5. As for the price payable for the property in suit, petition is bound to succeed. Classification of Khasra 1254 is hail ( ) whereas the remaining Khasras were either Maira type or Barani Awal. It is evident that hail ({{URDU TEXT}} ) is a superior classification of land and could not be equated with Maira or Barani Awal. It is also evident that superior right extended to a part of land sold. In such circumstances, Courts below when decreeing a pre-emption suit were obliged to determine the real market value of the portion of the land which was decreed in favour of the pre-emptor. With the contention of the learned counsel that proportionate price had been rightly worked out to represent its market value, I am unable to agree. It is clear that if a portion of entire area sold is pre-emptible, then it is to the real market value of that portion that is to be determined and it is not a fair way of dealing with the matter to work out the value according to the total price paid as the area pre-empted may be more valuable than the rest of the land as in the case in hand. Refer Talib Hussain and others v. Uttam Chand and others AIR 1929 Lah.
140. Therefore, the suit could not be decreed on payment of proportionate price. While going through the record, I also found that village Patwari had prepared Aust Panj Sala so as to show the market value of the land in suit. It too has not been taken into consideration. Alongwith the writ- application, petitioner has appended Aust Panj Sala of hail ( ) type of land. It comes to Rs.2,229.20 per Kanal. This document was not placed either before the Court of Appeal or before the Revisional Court. It has been brought on record only to show that market value of hail ( ) land was much more than for which the suit had been decreed. Complaint made by learned counsel for the petitioner, therefore, appears to be wholly justified. For the reasons set out above, impugned judgment, dated 21-5-1983 of the learned Additional Commissioner, Revenue, and affirming decision dated 28-8- 1984 of learned Member (Revenue), to the extent of decreeing the suit on payment of proportionate price are set aside and are declared to have been made without lawful authority. Result is that the case is remanded to learned Additional Commissioner (Revenue), Rawalpindi Division to determine the market value of the land in suit. If the available material is not considered sufficient to assist the decision of market value, it shall be open to the Court to record additional evidence also. It may be noticed that except for the issue of market value, findings on the rest of the issues are not disturbed and shall remain in-tact. No costs. Parties to appear before the Court below on 17-5-1987.