' One Faqir Ali s/o Haibat was owner of 1/4 share in khasra Nos. 371 and 372, measuring 11 Kanals 5 marlas, and 1/2 share in Khasra Nos. 369 and 370, measuring 26 kanals 15 marlas, situated in Village Deedal, Tehsil and District Abbottabad. He sold this land alongwith share in shamilat to Safdar Ali for an ostensible amount of Rs.16,000 inclusive of previous mortgage charge of Rs.2500 and for that purpose he got attested on 17-4-1973 Mutation No. 474 in favour of the vendee. Malik Aman pre-empted the sale alleging in the plaint that the sale consideration paid was only Rs.500 and the remaining amount shown in the sale mutation as such was fictitious and collusive. He claimed his superior pre-emptive right on the basis of cosharership, participation in the' immunities and appendages and contiguity.
2. The suit was contested by the defendants on legal and factual pleas. On facts he, inter alia, claimed that he being a tenant-at-will had a superior right to that of the pre-emptor and that the sale consideration of Rs.16,000 was fixed in good faith and actually paid by him to the vendor. On the pleadings of the parties the learned trial Judge framed the following issues:
(1) Whether the pltff. Has got no cause of action?
(2) Whether the suit is net competent in its present form?
(3) Whether the suit is bad for partial pre-emption?.
(4) Whether the suit is time barred?
(5) Whether a sum of Rs.16,000 was fixed in good faith or actually paid?
(6) What is the market value of the suit land?.
(7) Whether the pltff. Has got superior right of pre-emption?.
(8) Relief.
3. After recording such evidence of the parties as they wished to produce, the learned trial Judge answered issue No.7 in favour of the pre-emptor holding that he being a co-sharer had a superior right of preemption to that of the vendee who was held to have failed to prove his tenancy. Issue No.5 was answered in the negative for want of evidence. On issue No.6 the finding was that the market value of the suit land was Rs.7,433/10. Issue No.3 was decided in the negative and on issue No.4 the finding was that the suit having been instituted within one year of the date of attestation of sale mutation was within time. Since the pre-emptor was found having superior right of pre- emption, issue No.1 was answered against the defdt. Issue No.2 was also answered against him as having not been pressed by his learned counsel. In consequence, by the judgment and the decree dated 7-1-1976, the learned trial Judge decreed the suit in favour of the pre-emptor on payment of Rs.7,433/10.
4. Feeling aggrieved, the defendant filed appeal from the said decree in the Court of District Judge, Abbottabad (then Hazara). The appeal was heard by the learned District Judge on 17-4-1976, before whom issues pressed were issues Nos. 1, 5, 6 and 7. Without giving finding on issues Nos.1, 5 and 6, which were pressed before him, as already noticed, the learned District Judge, while discussing issue No.7, came to the conclusion that the stand taken by the defdt regarding his tenancy required "a further probe". For that reason, the learned District Judge, by the judgment and the decree dated 17-4-1976, accepted the appeal, set aside the judgment and the decree of the learned trial Court and remanded the case to it under Order XLI, Rule 23-A, read with section 151, CPC, with a direction to re-decide issue No.7 and in the light of the same re-decide the suit after allowing the parties proper opportunity to produce fresh evidence in that connection.
5. The parties again went before the learned trial Court where they also led some fresh evidence.
While deciding the suit the learned trial Judge, in paragraph 9 of the judgment, held that the learned counsel for the parties did not press any other issue before him, except issue No.7, and for that reason he confined his judgment to issue No.7, on which he held that although the pre-emptor was a co-sharer in the suit land but the defendant having proved himself to be tenant-at-will thereof had a right superior to that of the pre-emptor. While so holding the learned trial Judge observed in paragraph 10 of the judgment that the view taken by him in this regard had the support of the view expressed by the learned District Judge in paragraph 12 of the order of remand.
Consequently, by the judgment and the decree dated 26-5-1979, the learned Civil Judge dismissed the suit, leaving the parties to bear their own costs.
6. The matter once again went before the learned District Judge, Abbottabad in appeal; this time having been taken by the pre-emptor who was dissatisfied with the decree aforesaid passed by the learned trial Judge and thus filed appeal from it. Before the learned District Judge also only issue No.7 was pressed. The contentions raised by the learned counsel for the appellant, however, could not find favour with the learned District Judge because in his view on the question of fact that the defendant-respondent was tenant-at-will of the suit land the District Judge, Abbottabad in his earlier remand order dated 17-4-1976 had so found and no appeal having been filed from that Judgment, it had attained finality and could not be reopened at the appellate stage. The learned District Judge also observed that there was 'no shred of evidence on the record' to show that the defendant-respondent was in possession of the suit land in capacity other than that of a tenant-at-will. For these reasons, by the judgment and the decree dated 4-10-1982, the learned District Judge dismissed the appeal, leaving the parties to bear their own costs.
7. The aggrieved plaintiff-preemptor has come to this Court in revision, assailing herein the decrees aforesaid passed by the learned Courts below. To be stated at the outset, in this Court also arguments have been addressed only on issue No.7 and, as in the lower appellate Court, no other point or issue has been urged or pressed, with the result that the parties would be deemed to have accepted the findings of the learned trial Judge recorded in the judgment dated 7-1-1976 on all other issues.
8. Mr.Fazal Hussain, Advocate, appearing for the petitioner, contended that the findings reached by the learned Courts below on issue No.7 were the result of mis-reading and non-reading of material evidence brought on record, especially the latest Jamabandi to which presumption of truth was attached and in which the possession of the respondent was recorded as that of a mortgagee and not of a tenant. He further contended that in para 1 of the plaint reference to this jamabandi and sale mutation, through which the land was purchased subject to mortgage, was made and in reply thereto respondent did not specifically allege that the entries made in the Jamabandi and sale mutation respecting mortgage were incorrect, and by not so urging he would be deemed to have accepted as correct that position and could not, therefore, set up the plea of tenancy. The learned counsel also contended that in respect of these entries in the Jamabandi of 1970-71, and also in the sale mutation showing the land as mortgaged with the respondent, no question was asked from Patwari Helga nor any contrary suggestion was made to him in cross-examination and for that reason the respondent would be deemed to have accepted the entries contained in the sale mutation and the jamabandi of 1970-71 as correct, which had preference over all previous jamabandis. The learned counsel further contended that PLD 1956 Lah. 246 was not attracted to the case and both the learned Courts below misapplied the law while placing reliance on it. As to the finding of the learned District Judge that the question of tenancy of the respondent stood concluded by the observations of the learned District Judge in the first judgment of the year 1976, the learned counsel contended that it was not so and while remanding the case the learned District Judge re-opened issue No.7 for re-determination in the light of fresh evidence which the parties were permitted to bring on record.
9. Syed Abdus Salem Sarwar, Advocate, appearing for the respondent, contended that there was no admission on the part of the respondent in any manner as to the correctness of the mortgage entries made in the Jamabandi of 1970-71 and that the respondent was rightly held to be tenant- at-will of the entire suit land by the learned Courts below, which finding of fact, being concurrent and having the support of record, could not be disturbed by this Court in revisional jurisdiction. He further contended that in the sale mutation mortgage was mentioned because 1/2 share in Khasra No. 369 stood mortgaged with the respondent for Rs.2,500 by mutation No.281, attested on 24-5- 1965, which position continued till the date of sale.
' He also contended that the admission made by the learned counsel for the parties on issue No.7 before the learned trial Judge, as mentioned in paragraph 5 of the first judgment of the learned trial Judge, was binding on the parties and could not be re-opened at this stage. He also contended that the finding reached by the learned District Judge in paragraph 12 to 15 of his judgment dated 17-4-1976, whereby the case was remanded to the trial Judge, having not been assailed further, was binding on the petitioner who could not get it reopened at this stage. In this regard he cited the law to which I would refer later. The learned counsel also contended that in his statement the preemptor admitted the respondent as 'Bandidar' which term was meant for a tenant and that being so, he could not go out of it
10. Before going further and since the judgment of the learned District Judge dated 17-4-1976 is a subject-matter of controversy between the learned counsel for the parties, I would like to re- produce paras 12 to 15 of the judgment as under: "12 Taking into consideration all the mentioned facts on the record it transpires from the documentary evidence that the defdt-appellant is mortgagee of Khasra No.369 to the extent of 1/2 while he remained in possession of the remaining three khasra numbers as tenant-at-will. No cogent evidence has been brought on the record showing that the appellant was in possession of the remaining khasra numbers in the capacity of a mortgagee.
"13 Keeping in view the entries in the jamabandi of 1962-63, 1966-67, 1970-71, copies of which have been placed on the record and copies of the available khasra girdawari, there appear sufficient force in the contention raised by the appellant which requires a further probe. It is in the evidence of the patwari that the khasra girdawari from Kharif 1971 to Kharif 1974 had been destroyed. It is possible that the record might have been re-constructed by now.
"14 In this view of the matter I consider it proper to remand the case back to the trial Court for allowing the parties a fresh opportunity to adduce evidence in order that a clear finding be given in connection with issue No.7 framed in the case.
"15 In the result I accept the appeal, set aside the judgment and decree dated 7-1-1976 of the learned lower Court and ramand the case back to the learned lower Court u/o 41 Rule 23-A read with section 151 C.P.C. With the direction to re-admit the suit under its original number in the register of civil suits and to determine issue No.7 afresh in the light of the observation made above and on the basis of the finding in connection with that issue to decide the suit afresh after allowing the parties proper opportunity to produce fresh evidence in that connection. Costs to follow the event.
Parties are directed to appear before the learned lower Court on 28-5-1976."
11. It is in respect of the aforesaid finding of the learned District Judge that the learned counsel for the parties have taken a divergent stand. The learned counsel for the petitioner contended that this finding could not be regarded as adverse to the petitioner and was not final because the case was remanded to the learned trial Judge for giving fresh finding on issue No.7 after the parties were afforded oportunity to produce fresh evidence on that issue. If the learned District Judge had given final finding on the point of tenancy of the respondent, then the appeal could have been decided by him on that score and the remand of the suit for fresh finding on issue No.7 would have been unnecessary. The learned counsel for the respondent, however, argued that finding recorded by the learned District Judge, referred to above, was final and having not been challenged before the higher Court, it attained finality and could not be reopened by any Court at any stage. The learned counsel cited 1984 CLC 2920 in support of his argument. I have considered the submissions made by the learned counsel for the parties in this regard. The arguments of the learned counsel for the petitioner carry weight. The discussion by the learned District Judge in paras 12 and 13, quoted above, clearly indicates that an arguable case was presented before him on behalf of the tenant but the record placed before him was found insufficient to permit finding on this point one way or the other, and for that reason, as made clear in paras 14 and 15 quoted above, the case was sent back to the learned trial Judge for fresh decision on issue No.7 and fresh decision in the light of the same on the whole suit after the parties were afforded opportunity of producing fresh evidence in that connection. The law cited by the learned counsel for the respondent is distinguishable on facts because in that case finding on issue No.4 had been closed and the case had been remanded for decision on other issues, which is not the case here.
12. Having held that the finding of the learned District Judge in paragraphs 12 to 15 of the judgment dated 17-4-1976 had not closed issue No.?, I have no option but to observe that the approach of the learned District Judge, who decided the appeal second time, in this regard was totally wrong. Issue No.? Was open for re-determination and was to be decided in the light of the entire evidence which was brought on the record before and after remand and the learned lower appellate Judge proceeded on wrong premises in making his judgment on this issue subservient to the judgment dated 17-4-76 given by his predecessor. I may further observe that the learned District Judge in the impugned judgment did not at all advert to the evidence brought on record and by making general reference thereto he Could not be taken to have applied his mind to the evidence available on the record as well as the merits of the case. For this reason, the finding of the learned District Judge on issue No.7, impugned herein, is no finding in the eye of law and the rule of concurrent finding of fact' advocated by the learned counsel for the respondent before me, is, therefore, not attracted to this case. While taking this view of the matter, I could have remanded the case to the learned lower appellate Court for re-determination of the appeal on merits, but this course would have added to the agony and expense of the parties, and since the record has been summoned by this Court, I would myself proceed to reappraise the evidence in order to find out whether the conclusions reached by the learned Courts below are sustainable.
13. The dispute between the parties relates to the share sold out of four khasra numbers. The parties have brought on record oral and documentary evidence in support of their respective claims. The revenue record clearly shows that Malik Aman petitioner-plaintiff is a co-sharer in the suit land and Safdar All respdt-defdt is not possessed of this qualification. His stand from the beginning is that he being a tenant-at-will of the suit land has a right superior to that of co- sharership and could, therfore, defeat the pre-emption suit. His plea has been accepted in toto by the learned Civil Judge in his judgment impugned herein and his plea has also been accepted by the learned District Judge in his judgment impugned herein, about which I have already recorded remarks. Besides Jamabandis of 1962-63 (Ex.P.W. 1/D-1), 1966--67 (Ex.P.W. 1/D-2) and 1970-71 (Ex.P.W.1/1), copies of khasra girdawari (Ex.P.W.1/D-3)--(Ex.P.W.l/D-4) from Kharif 1963 onwards have also been placed on the record. So far as khasra No. 370 in suit is concerned, the case is quite straight. From Rabi 1966 onwards respdt-defdt remained in its possession as tanant-at-will till the date of sale. In the revenue record he has been recorded as such and the entry in respect of column of 'Lagan' even in the jamabandi of 1970-71 shows his possession as that of a tenant on payment of share of produce. The petitioner-plaintiff has not brought any evidence on the record in rebuttal of the evidence led by the respdt-defdt, especially the revenue record. The oral evidence as against it has no value. The finding of the learned trial Judge on this issue respecting Khasra No. 370 cannot, therefore, be taken exception to.
14. As regards Khasra No.371, the entries in Khasra Girdawari would show that respdt-defdt secured possession thereof in Rabi 1966 as a tenant-at-will on payment of 'batai' mentioned in that record.
The change in previous possession was also noted in the Roznamcha (Ex.P.W.1/D-5) of 4th May, 1966. This entry was incorporated in the jamabandi of 1966-67. Thereafter the respondent is shown to have continued in possession of this Khasra number as a tenant but in kharif 1969 he was shown to be in possession as a mortgagee for Rs.1200. There is, however, nothing in the evidence to suggest as to how his possession was recorded in Kharif 1969 as that of a mortgagee. In the jamabandi of 1970-71 he was also shown as tenant of this khasra number in the column of cultivation but in the colum of 'Lagan' he was shown as 'Bila Lagan Bawaja Rahn'. It is now well- settled that entry in the column of cultivation would prevail over entry of column of 'Lagan' unless strong evidence is led by the person so alleging to prove that the entry in column of 'Lagan' was correctly made and had preference over the entry made in the column of cultivation. In this regard the solitary statement of the petitioner-plaintiff is not sufficient. So, the finding of the learned trial Judge in favour of the respondent-defendant regarding Khasra No.371 is also unexceptionable.
15. Khasra No.372 in suit has the same history as khasra No.371 and for the same reason I would endorse the finding of the learned trial Judge recorded in favour of the respondent-tenant.
16. Before discussing khasra No. 369 in suit, I would like to deal with the argument of the learned counsel for the respondent that the admission made by the counsel representing the petitioner before the Civil Judge in the first round of litigation being binding on the petitioner, no argument could at this stage or even at prior stages be addressed contrary to that admission. I must express that on this point proper assistance on both sides has not been rendered, in view of which I would make no decision on this point, also because, in the light of my findings above relating to Khasra Nos.370, 371 and 372, it appears un-necessary, for the admission of the learned counsel at that stage also related to these khasra numbers.
17. Here I would also like to deal with the argument of the learned counsel for the petitioner as it mainly concerns the three khasra numbers mentioned above respecting which my finding is against the petitioner. The learned counsel contended that having not specifically disputed entries made in jamabandi 1970-71 and'sale mutation showing the land in suit as mortaged, the argument was not available to the respdt to urge that those entries were incorrect and that he was a tenant of the, suit land. His other contention was that when reference to jamabandi and sale mutation was made in paragraph 1 of the plaint the respondent should have in his written statement specifically stated that entries were incorrect, and having not done so at that stage nor having questioned Patwari Halqa on this point, he was estopped from setting up the plea of tenancy as he would be deemed to have accepted the entries as correct, particularly of jamabandi 1970-71 which had preference over the previous jamabandis. The contentions have no substance. It was not specifically alleged in para 1 of the plaint that the entries relating to mortgage in the jamabandi 1970-71 in column of 'Lagan' and entries of mortgage in the sale mutation were correct. That being so, and mere reference to jamabandi and sale mutation having been made, it was not the duty of the respondent to have specifically alleged in the written statement that the entries in the jamabandi or the sale mutation relating to mortgage were incorrect. So far as jamabandi is concerned, it was in column of 'Lagan' that entry of mortgage in front of some Khasra numbers appeared and so far as sale mutation is concerned khasra No.369 coming down as mortgaged with the respondent, its correctness could not be doubted. The effect which entry in column of 'Lagan' had created on the rights of the parties has already been dealt with by me above and there is, therefore, no need to discuss it any further. The respondent, in the circumstances, was neither estopped to take the plea of tenancy nor was any admission on his part available on record against that plea, nor would he be deemed to have accepted such entries as correct.
18. The history of Khasra No.369 remains to be considered. This Khasra number was entered in the jamabandi of 1962-63 (Ex.P.W.1/D-1), as mortgaged with Gulzaman who was in its possession as a tenant. In column of 'Lagan' he was entered as non-paying tenant on account of mortgage. In the column of remarks Mutation No.255 was mentioned by which mortgage in his favour had been created. The date of attestation of this mutation appears to have been incorrectly recorded because subsequent redemption Mutations Nos. 280 and 284 were attested on 24-5-1965 and by these mutations the mortgage was redeemed from him. Thereafter, on this Khasra number the possession of the owners in Khasra girdawari as well as in the subsequent jamabandis has been recorded, which means that this Khasra number, in view of consistent entry in the revenue record, after redemption from Gulzaman, came to be possessed by the owners. However, entry relating to one crop (Rabi 1966) in respect of this Khasra number as in favour of the responuent, which in Kharif 1966 was changed in favour of the owners. This entry in the Khasra girdawari relating to one crop only appears to have been mis-stated as all other entries in the revenue record are against it.
' From this it follows that the respondent has not remained in possession of Khasra No.369 as a tenant. One-half share of Faqir Ali in this Khasra number, of course, had been mortgaged with the respdt. In column of ownership, by mutation No.281, attested on 24-5-1965, which was incorporated in the jamabandi of 1966-67 (Ex.P.W.1/D-2). The possession, however, remained with the owners though mortgage appears to have continued till the date of sale. It is because of the mortagage that 1n the sale mutation the sale was mentioned as subject to mortgage. The respondent could not brink any cogent evidence on the record to prove that he was also a tenant of this Khasra number, the consistent entries in the revenue record being against him. The statement of the petitioner recorded before remand' when read as a whole does not indicate that the term 'bandidar' used by him related to the entire suit land, including this Khasra. The plea of tenancy set up by the respondent in respect of this khasra number, therefore, fails.
19. There is no dispute between the parties regarding the market value which was determined by the learned Civil Judge while deciding this case on 7-1-1976. That finding having become final between the parties remains in the field.
20. In the result, while partially accepting this revision petition, I set aside the judgment and the decrees of the learned Courts below in so far as they relate to khasra No.369, and I grant to the petitioner-plaintiff a decree for 'equity of redemption of 1/2 ,share in khasra No.369, with proportionate share in shamilat, by pre-emption, on payment of Rs.3,245. If the whole of preemption amount is not already in deposit, the petitioner-plaintiff shall deposit the remaining pre-emption amount within two months from today, failing which his suit shall stand dismissed. For partial success, I have the parties to bear their costs.