' Haji Hassan Khan son of Sharabat Khan to exercise his superior right of pre-emption based on participator in immumities, appendages and contiguity instituted Suit No, 238/1 in the Court of Senior Civil Judge, D. I. Khan against Sanaullah Khan alias Khan son of Alam in respect of land measuring 126 Kanals 11 Marlas bearing Khasra Nos. 5810, 5815, 5816, 5818, 5819, 5820 and 6064 situated in Mouza Tank District D. I. Khan. The sale in favour of the defendant/vendee took place through Mutation No, 675 attested on 10-8-1975 for an ostensible sum of Rs, 1,26,300. However, in the plaint, the sum of Rs, 25,310 was alleged to be the actual sale consideration fixed and paid in good faith to the vendor.
2. The defendant/vendee in his written statement resisted the plaintiff's suit on various pleas. After denying the plaintiff's superior right of pre-emption, it was specifically pleaded that he was in cultivating possession of the suit land as a tenant before the sale made in his favour, therefore, the civil Court had 80t no jurisdiction in the matter under paragraph 25 of M. L. R. No,
115. The learned trial Judge framed the following issues arising out of the pleadings of the parties:-
(1) Whether the plaintiff has got superior right of pre-emption?
(2) Whether the amount of Rs, 1,26,300 was fixed in good faith?
(3) Whether the Court has jurisdiction to entertain this suit?
(4) Market value?
(5) Whether the suit is time-barred?
(6) Whether the plaint is not properly stamped?
(7) Relief.
3. On 7-5-1979 the plaintiff made an application for amendment of his plaint to raise a plea that the defendant/vendee's right of tenancy could not affect his superior right of pre-emption in view of the judgment of the Shariat Bench of Peshawar High Court. However, on the statement of the counsel for the defendant that an issue could be framed on the question without amending the plaint, the following additional issue was framed:- "Whether the plea of tenancy taken by the defendant in view of the recent decision of the Shariat Bench is not maintainable?"
4.After recording statement of the Mukhtiar of the plaintiff namely Shamsu Jan and that of his witnesses Ghulam Sarwar and Mir Badshah on behalf of the plaintiff and that of the defendant the learned trial Judge held that the plaintiff was having his land contiguous to the suit land at the time of sale but the subsequent purchase made by the defendant/vendee through Mutation No, 934 attested on 25-2-1978 the defendant possessed equal right with the plaintiff hence dismissed his suit vide his judgment and order dated 1-7-1982. He based his order on the assumption that the plaintiff failed to maintain his superior right of pre-emption till the decision of his suit for pre- emption or passing of the decree. On appeal by the plaintiff, the judgment and decree of the trial Court was set aside and the case sent back to the Senior Civil Judge with direction to record statement of the Patwari Halqa and to give his finding on all the issues, including that on the tenancy, vide his judgment dated 1-12-1982. After the remand, statement of the Patwari was recorded, as directed, but the suit was dismissed again on 19-6-1983. While giving his finding on Issue No, 1, it was held that defendant/vendee was in possession of the land as tenant before and at the time of sale made in his favour. He, therefore, was having a first right of pr-emption under the provision of paragraph 25 of M. L. R. No,
115. The sum of Rs, 377-per Kanal was held to be market value of the suit land in the absence of any positive proof of the payment of sale consideration mentioned in the mutation.
5.The judgment and decree of the learned Senior Civil Judge, was challenged in appeal before the District Judge. It may be pointed out that the trial Judge had held that excepting a part of Khasra No, 5815, the defendant/vendee, being a tenant of the entire land had first right of pre-emption. It was further held that out of Khasra No, 5815 total measuring 61 Kanals 3 Marlas, the defendant/vendee was not in cultivating possession of 41 Kanals 3 Marlas, however dismissed the suit in toto, as by virtue of dismissal of the plaintiff's suit regarding Khasra No, 5816, the contiguity claimed by the plaintiff was broken.
6. The learned District Judge, however, held that out of Khasm No, 5815, the defendant/vendee was having a first right of pre-emption to the extent of an area measuring 40 Kanals 3 Marlas of which he was a tenant at the time of sale. He, therefore, modified the judgment and decree of the trial Court and passed a decree for an area measuring 20 Kanals on payment of proportionate market value amounting to Rs, 7,549.60 vide the impugned judgment and decree dated 16-4-1984.
7. The defendant/vendee has challenged the judgment and decree of the District Judge in Civil Revision No, 80 of 1984 while the plaintiff/ pre-emptor has challenged the judgment and decree of both the Courts below in Civil Revision No, 93 of 1984. Both these revision petitions are, therefore, disposed of by the single judgment.
8. Haji Hassan Khan plaintiff/pre-emptor is not present while his learned counsel Mr. Abdul Hakeem Khan Kundi has sent a telegram for adjournment of the two matters. Counsel for the defendant/pre-emptor is, however, present and heard. .
9. These revision petitions were adjourned at the requests of Mr. Abdul Hakeem Khan Kundi, the learned counsel for the plaintiff/ petitioner earlier on 8-5-1985, 12-10-1985, 7-12-1985, 23-4-1986 and 25-6-1986. As there is no work fixed for disposal today, the request for adjournment, in the circumstances, cannot be granted. As both these revision petitions are for exercise of revisional jurisdiction, I, therefore, proceed to dispose them of on merits.
10. Learned counsel for the petitioner contended that the trial Court has held that the defendant/vendee was in cultivating possession of the entire suit Khasra number excepting an area measuring 41 Kanals out of Khasra No, 5815 before the sale made in his favour as tenant but Khasra No, 5816 indispute regarding which plaintiff's suit has been dismissed, as stated above, intervenes Khasra No, 5815 indispute and Khasra No, 5817 owned by the plaintiff on which basis the plaintiff claimed contiguity, the plaintiff's suit was dismissed even regarding Khasra No, 5815. The learned District Judge, however, after discussing the evidence of both the parties regarding the tenancy rights of the defendant/ vendee, omitted to note that by dismissal of the plaintiff's suit regarding Khasra No, 5816 the contiguity of Khasra No, 5817 with Khasra No, 5815 was broken, partially accepted the appeal decreed the plaintiff's suit to the extent referred to above his grievance, which is well-founded, is that the learned District Judge did not advert to the aspect of the case dealt with by the trial Court and altogether ignored it. In support of the proposition, the learned counsel relied on judgment Abdul Qayum v. Muhammad Aslain (1).
11. In the grounds of revision petition filed by the plaintiff, the defendant/vendee claim of first right of pre-emption based on tenancy in defeating the plaintiff's suit has been challenged.
12. From the perusal of Aks-Shajira-Kishtwar which has been placed on file, Khasra Nos. 5815, 5816 and 5819 are in one block and Khasra No, 5817 owned by the plaintiff is contiguous to Khasra No, 5816 in suit which no doubt extended contiguity to Khasra No, 5815 but both Courts A below having concurrently held that the defendant/vendee was a tenant of Suit Khasra No, 5816 before the sale made in his favour and at the time of sale, the plaintiff was rightly non-suited by the trial Court of the part of Khasra numbers in tenancy of defendant/vendee while he was non-suited {{FOOT NOTE}}
(1) PLD 1979 SC 867 {{FOOT NOTE}} to the rest of Khasra No, 5816, which was not in his tenancy , because of the contiguity of Khasras Nos. 5816 and 5819 regarding which plaintiff failed to prove his superior right of pre-emption broken with Khasra No, 5815. The learned District Judge, however, ignoring the evidence on record wrongly assumed that Khasra No, 5817 still was contiguous to Khasra No, 5815 on the principle of existence of a block which in fact no more remained intact. Undoubtedly the plaintiff's land is not directly contiguous to Khasra No, 5815 as plaintiff's suit regarding Khasra No, 5816 wnich is in between Khasra No, 5815 and Khasra No, 5817 was dismissed. The contiguity would have extended to Khasra No, 5815 only if plaintiff had proved to have a superior right of pre-emption to Khasra No, 5816. The findings of the learned District Judge, in this respect, therefore, suffers from misreading of evidence and misapplication of law.
13. In this view of the matter, Revision Petition No, 80 of 1984 by the defendant/vendee is accepted, the judgment and decree of the learned District Judge is set aside and that of the trial Court restored B and in consequence thereof Revision Petition No, 93 of 1984 by the plaintiff/petitioner stands dismissed. Parties are, however, left to bear their own costs.