' A suit for possession through pre-emption was filed by Mehdi Hassan, respondent herein, in the Court of Senior Civil Judge, Multan on 9th August, 1981 against the petitioner seeking to pre-empt the sale of land measuring 8 kanals being 160/3869 share in khewat No,148 situate in Mauza Alamgir, Tehsil and District Multan. This land was sold by Siraj Din son of Sher Muhammad through a registered deed of sale, dated 26th of October, 1980 to the petitioner, Khuda Bakhsh ostensibly for a sum of Rs,22,000. The respondent/plaintiff claimed superior right of pre-emption against the petitioner on the ground that he was a co-sharer in the khata.
2. This suit was resisted by the petitioner who in his written statement pleaded that he was his tenant in respect of land purchased by him and as such the respondent/plaintiff had no superior right of pre-emption. On the pleadings of the parties the learned Civil Judge framed seven issues out of which issue No,2 which is relevant for the present controversy is reproduced below:- "Whether the plaintiff has superior right of pre-emption? OPP"
2. Both the parties produced their evidence, for and against the issues. The respondent/plaintiff appeared himself as P.W.1 and produced, copy of the Jamabandi as Ex.P-1, copy of the Khasra Girdawari, Exh. P.2, copy of the sale-deed Exh.P.3 and statement of net-profits as Exh.P.4. On the other hand, the petitioner/defendant produced D.W.1, Habib and appeared as his own witness as D.W.2. He also produced in evidence copy of the sale-deed as Exh.D.1, copy of the Jamabandi as Exh.D.2, copies of Khasra Girdawaris, Exh.D.3, Exh.D.4 and a copy of Jamabandi as Exh.D.5.
3. The learned trial Court on 4-6-1985 passed a decree in favour of the respondent to the extent of 7 kanals and 13 marlas but dismissed the suit with respect to the remaining 7 Marlas of land. The finding recorded by the learned trial Court was that though the respondent was tenant of the land purchased by him yet since he had purchased a fractional share out of the joint holding, he was entitled to retain only that area which fell to the share of his vendor. The respondent challenged this finding by filing an appeal before the learned District Judge, Multan which was, however, dismissed by the learned Addl. District Judge on 19th of January, 1986.
4. The learned counsel for the petitioner has contended that the joint khata in question had been partitioned between the owners and as such his vendor was the exclusive owner of the land sold by him; that since a specified khasra number measuring 8 kanals of land had been sold by the vendor to the respondent of which he was the tenant, both the Courts below were not correct in decreeing the suit to the extent of 7 kanals and 13 marlas.
5. In my view none of the contentions raised by the learned counsel is tenable. As regards the first argument, it is to be pointed out that there was no plea raised in the written statement to the effect that the Khata in question stood partitioned before the sale in A favour of the petitioner. Even otherwise, it is apparent from the perusal of the Revenue record, especially Register Haqdaran for the year 1977-78 Ex.P.1 that the Khata was joint and was never partitioned. Even in the sale-deed Exh.D.1, through which the petitioner himself had purchased the land, the khata is mentioned as joint out of which a fractional share has been sold to the petitioner. No legitimate grievance, therefore, can be made against the finding of fact recorded by the Addl. District Judge in this behalf.
6. The other contention that even if the land in question was joint, since the petitioner had been sold 8 marlas of land of which he was a tenant, he had first right of pre-emption and the right claimed by the respondent as co-sharer was not superior to that of the petitioner is equally devoid of force. According to the sale-deed Exh.P.1 itself, the petitioner was sold a fractional share in the Khata by his vendor. It was specifically mentioned that 160/3869 share measuring 8 kanals out of joint holding was being sold to the petitioner, the share of his vendor in this khata out of which land was sold came to 7 marlas only although he was in possession as a tenant of 8 kanals. In law, where a fractional share of a bolding is sold, the right of pre-emption extends to the corresponding share of the land comprised in tenancy. The tenant is entitled to be substituted in place of the vendor and can claim only portion/share of the land sold from each khasra number. He cannot claim first right of pre-emption over the entire area of tenancy when his vendor himself was not the exclusive owner of the same. Similar argument was raised before the Supreme Court in the case reported as Fateh Khan v. Abdul Rehman (1983 SCMR 293), which was, however, repelled in the following terms: "....Learned counsel for the petitioner submitted that the petitioner being tenant of 30 kanals in the suit land bearing khasra No,616 having total area of 385 kanals and 3 marlas and being in cultivating possession of 30 kanals as tenant-at-will since long, has a superior right as against the respondent under paragraph 25(3)(d) of the Land Reforms Regulation, 1972 and he is entitled to a decree for 30 kanals out of Khasra No,616.
' This argument is devoid of any legal force. It is admitted that the petitioner was tenant-at-will of 30 kanals of land bearing khasra No,616 which was pre-empted by the respondent, he purchased 1/4th and to that extent his right is protected under paragraph 25(3)(d) of the aforesaid Regulations. Therefore, he would be entitled to 1/4th of total area under his cultivation which comes to 7 kanals and 10 marlas...."
' Same view was taken by this Court in the case of Noor Muhammad v. Member Board of Revenue and 3 others (1985 CLC 571).
7. The learned counsel for the petitioner has relied upon two judgments of this Court, in the case of Muhammad Zaman v . Tariq Mahmood and others (1982 CLC 2665) and R.S.A. 154/83 decided on 18-10-1984. With great respect, the two judgments referred to above cannot be relied upon in view of the judgments of the Supreme Court in Fateh Khan's and Noor Muhammad's cases.
8. The last submission of the learned counsel was that the petitioner was a tenant with respect to 30 kanals of land in the Khata and if the area is too calculated on the basis of proportional share as has been done by the Courts below, the petitioner would be entitled to retain one kanal and 10 marlas of land and not mere 7 manias. This plea was never raised by the petitioner before any of the Courts below. In any case, his claim being tenant of 30 kanals is belied by his own statement when he appeared as D.W.2 before the trial Court and in cross-examination he has specifically admitted that except for the land purchased by him measuring 1 acre he was not cultivating any other land. In face of this admission of the petitioner himself, the contention of the learned counsel that the petitioner was tenant with respect to 30 kanals of land cannot be accepted.
' For the foregoing reasons the revision petition fails and is dismissed leaving the parties to bear their own costs.