Ihsan ul Haq Chaudhary, J- The petitioners purchased land measuring 42 kanals 10 marlas situated in Mauza Jungle, Tehsil Alipur District Muzaffargarh. The land was purchased from Mst.Bhori etc., who were owners in the joint khata to the extent of 848/2648 through registered sale deed dated 22.1.76 for a total consideration of Rs.16,000/-. The respondent filed a suit for possession invoking superior right of pre-emption as co-sharer. The suit was resisted by the petitioners mainly on the ground that since they are tenants of the land in dispute, therefore, they have a superior right of pre-emption under M.L.R No:
115. The learned trial Court in view of the pleadings of the parties framed the following issues.
1. Whether the plaintiff is estopped to bring this suit? OPD
2. Whether the plaintiff has a superior right of pre-emption? OPP.
3. Whether a sum of Rs. 16000/- was bonafidely fixed or actually paid as the sale price of the suit- land? OPD.
4. What was the market value of the suit land at the the of its sale? O.P.Parties.
5. Whether the suit is incorrectfy valued. If so, what is the correct valuation? OPD
6. Relief."
2. The parties led their respective evidence and the trial Court after hearing the arguments proceeded to decree the suit vide judgment and decree dated 16.4.86. The petitioners impugned this judgment and decree through an appeal in the Court of District Judge, Muzaffargarh, who entrusted the same to one of his Additional District Judges. The appeal was partially allowed by the lower appellate Court vide judgment and decree dated 26.4.87 with the result that the suit of the respondent was decreed to the extent of 28 kanals 19 marlas while it was dismissed for the remaining 13 kanals 11 marlas. The respondent was accordingly to pay Rs.10,892/- to the petitioners as pre-emption money. It is this decree, which is the subject- matter of this revision.
3. The revision was admitted to regular hearing and notices issued to the respondent, who has entered appearance and contested the petition. The learned counsel for the petitioners in support of the petition has argued that since the petitioners were tenants for whole of the suit land, therefore, the suit of the respondent was liable to be dismissed as a whole. In this behalf learned counsel has referred to Khasra Girdawri Ex: D1 for Kharif 1973 to Rabi 1977 and Ex: D2 Khasra Girdawri for Kharif 1977 to Rabi 1978. The learned counsel for the petitioners has added that the Collector vide his order dated 6.2.79 proceeded to correct Khasra Girdawri. The result was that all the petitioners were treated as tenants from Kharif 1973.
4. On the other hand, learned counsel for the respondent has argued that the total area of khata No.211 is 132 kanals 8 marlas, out of which the petitioners proceeded to purchase only 848/1648 share. They did not get specific land as such the question of petitioners being tenants of the land purchased does not arise. The argument in nut-shell is that the petitioners cannot be treated as tenants of the suit land. The learned counsel in this behalf has referred to the cases of Lai Khan Vs. Faiz Ahmad and another (1986 S.C.M.R. 1962) and Allah Bakhsh and others Vs. Muhammad Habib Uilah Khan (1985 M LD 1493).
5. In the alternative it was argued that since the petitioners themselves did not get them describe as tenants of the land in the sale deed, therefore, they could not be treated as tenants. The learned counsel in this behalf has again referred to the case of Allah Bakhsh. Lastly, it was argued that the lower appellate court was wrong to accept the claim even partially after 31.7.86 when the alleged superior right of petitioners as tenants became dead-letter in view of the decision of the Honourable Supreme Court in the case of Govt.N.W.F.P Vs. Malik Said Kamal (P.L.D 1986 S.C.360)
6. The learned counsel for the petitioners,while replying to the 'arguments of the learned counsel for the respondent, argued that since the petitioners were to be substituted instead of the original vendees, therefore, the question of this being tenants of specific portion is irrelevant. The simple fact is that they were previously tenants of particular portion of the Khata and now have become owners. The learned counsel for the petitioner when confronted with the case of Said Kamal sought permission to withdraw this revision in order to at least have the partial relief allowed by the lower appellate Court and also cited case of Mubarik Vs. Abdur Rashid (P.L.J 1989 Lahore 8) to urge that since the petition filed by the respondent was submitted with long delay, therefore, respondent is not entitled to any relief.
7. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the paper-book as well as precedent cases. I would like to make one fact clear that during the pendency of the revision petition by the petitioners respondent also proceeded to file cross-objections. The same came up for hearing before my learned brother Munir A. Sheikh J. It was observed that no cross-objections are maintainable in revision petition. This legal position is not contested by the respondent. However, the learned counsel has prayed that the same may be treated as independent revision or this Court may exercise the revisional powers suo moto set aside the remaining portion of the impugned judgment and decree of the lower appellate Court.
1. Now I proceed with the arguments of learned counsel for the petitioners. It is admitted position that the petitioners purchased only 848/2648 share of joint khata, therefore, they just became co- sharer in khata No. 211 and not owner of specific portion and in the absence of specific portion they cannot be treated as tenant, of the suit land. The matter has been set at rest with the judgment of the Hon'ble Supreme Court in the case of Lai Khan, which I am bound to follow in view of the provisions of Article 189 of the Constitution of Islamic Republic of Pakistan, 1973. The relevant portion of the judgment reads as under.
" It is not denied that the peitioner was recorded as tenant under Jindwadda and Allah Bakhsh and was not recorded as tenant of the vendors namely, Arif and Mst.Faiz Ilahi, His tenancy does not comprise of the whole of the land in the four Khatas i.e. 424 Kanals. He claims to have cultivated only 97 kanals. It is obvious that those 97 kanals have not been sold by the vendors, therefore, even if it be assumed that the vendors sold unpartitioned share it was from the land other than the 97 kanals, which the petitioner held as tenant under Jindwadda and Allah Bakhsh. Under paragraph 25 (3) (d) of the Regulation the petitioner could claim superior right of preemption only" in respect of the 97 kanals, which he held under Jindwadda and Allah Bakhsh. The same not having been sold by the vendors the suit of the pre-emptor was rightly decreed in their favour."
The second argument of the learned counsel for the respondent was that the petitioners have described themselves as khewatdar in the village in the sale deed but there is no mention of the fact that they are in possesion of the land as tenants. On the other hand, it is incorporated in the sale deed that the peitioners-vendees have accepted the terms and conditions of the sale deed and entered into the possession. The relevant porition reads as under: - Space of urdu The-learned counsel for the respondent has rightly referred to case of Allah Bakhsh and others. The relevant porition of the same reads as under.
".... According to the appellants they had purchased the land comprising their tenancy from the owner of the land. In view of their above status nobody could claim superior right of pre-emption against them. It would have been quite natural on their part to ask for the recital of their above status both in the agreement to sell and the sale-deed executed by the vendor in their favour but in the sale- deed copy of which has been placed on the file as Exh.P.1. No reference to the above status of the appellants has been made. On the other hand it is stated that the physical possession of the land sold was delivered by the vendor to the appellants at the the of execution of the sale- deed."
In the precedent case, the lower appellate court from above facts inferred that the plea about the possession of the vendees of the suit land as tenants was incorrect.This conclusion was approved by this Court. The same is exactly the position here, therefore, I hold that the learned lower appellate Court was wrong to modify the decree granted by the trial Court in favour of the respondent. The peitioners when purchased fractional share of the joint khata then they became owners in each inch of the land and their right of being tenants for the specific portion of the land does not advance their defence plea that since they are tenants of a portion of the joint khata, therefore, their right of pre-emption is superior then that of the respondent, who had filed the suit on the basis of superior right as co-sharer in the khata.
3. The fact that according to the original khasra girdawari only Khuda Bakhsh, one of the vendors and predecessor in interest of peitioners No.2 to 5 was the tenant. They, however, after the instituion of the suit, submitted an application and secured an order from Colllector according to which all the three vendees were shown as tenants in the Khasra girdawari. It is proved form record that this order was secured from the Collector by under hand means to boost up the defence in the pre- emption suit. Because otherwise the vendee Khuda Bakhsh having joined with him, to others, who were admittedly not tenants, could not have been successfully set up the defence in view of principle of sinker. This was the whole object of getting khasra girdawar corrected after long the. I wonder how the Collector proceeded to order correction of Khasra girdawari in view of report Ex.P.3 wherein it was clearly mentioned that before Rabi, 1978 only Khuda Bakhsh was shown as a tenant and the application for correction of Khasra girdawari has been moved on 16.11.1977 whereas the suit was filed by the respondent on 22.1.1977. There is no presumption of truth attached to the Khasra girdawari. Therefore, the trial court has rightly held that Khuda Bakhsh only was tenant and since he had joined with him Allah Bakhsh and Ghulam Qadir, who were not tenants of any portion of the land comprising of joint khata, therefore, principle of sinker applied and he had also lost superior right as a tenant.
9. In this view of the finding, I need not deal with the last argument of the learned counsel for the respondent to the effect that*the petitioners in any case has lost superior right on account of alleged tenancy after 31.7.1986. The same is left open to be dealt in some other appropriate case.
10. It may be added here that if the argument of the learned counsel for the peitioner, that since the petitioners were tenants of particular piece of joint khata, therefore, they had become owners of the land is accepted then it will amount to effecting partition of the joint khata without hearing all owners. This of course will not only be illegal and without jurisdiction but also Bevon the scope of suit. The learned counsel for the petitioners, on the other hand, referred to case of Muhammad Zaman Vs.Tariq Mahmood etc. (N.L.R 1982 Civil 379), in support of his contention that right of pre- emption is one of substitution and as such tenants-petitioners will take over, whatever, right vendees had. In the land sold out of joint khata. There is no scope of this argument after the decision of Hon'ble Supreme Court in the case of Lai Khan, which is the latest in time.
11. The lower appellate court while accepting the appeal of the Muhammad Ramzan etc (Petitioners) partially did not follow the decision of Hon'ble Supreme Court in case of Lai Khan. This fact alone is sufficient to exercise revisional powers suo moto and set aside the modification made by the lower appellate court in the decree passed by the Trial Court. Even if the so called cross objections of the respondents are not treated as independent revision still in the revision of the petitioner, this court is competent to pass any order. I may refer to Section 115 of C.P.C which reads as under.
115. Revision (1) The High Court may call for the record pf any case which has been decided hv and Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinateCourt appears.
(a) to have exercised a'jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
The High Court may made such order in the case as it thinks fit.
It is now established law that this Court while exercising revisional jurisdiction may pass such order in the case as it thinks fit. In this behalf the reference can be made to the case of Manager Jammu & Kashmir, State Property in Pakistan Vs Khuda Yar and another (P.L.D 1975 SC. 678), Karamt Hussain and others Vs.Muhammad Ramzan and others (P.L.D 1987 S.C. 139) and A.Rammurthi Iyer and others Vs. T.A. Mennakshisu- ndarammal (A.I.R. 1945 Madras 103).
12. The result is that I do not find any force in the revision C.R 658-D/87 filed by the vendees Muhammad Ramzan etc and dismiss the same while treating the so called cross objections by Abdul Shakur as independant revision, I allow the same, set aside the impugned modification made by the learned lower appellate court. The net result is that the decree of the trial Court is restored in toto. There is no order as to costs.