' MUNIR A. SHEIKH, J.--This is unsuccessful vendee's/defendant's Letters Patent Appeal, arising from pre-emption suit which has been directed against judgment and decree dated 9-2-1967 passed by learned Single Judge, affirming the judgment and decree passed by learned Additional District Judge dated 20-5-1957 whereby the appeal filed by the appellant against judgment and decree of the learned trial Court dated 9-11-1955 decreeing the suit for possession of land through pre- emption of respondent No,1/plaintiff has been rejected.
2. The facts giving rise to this Letters Patent Appeal shortly stated are that one Nawab Khan defendant No,2 sold his land measuring 17 Kanals 2 Marlas comprising Khata number 88/415 to 417, Khasra numbers 614, 563, 572 and 622 according to the Jamabandi for the year 1947 situated in village Bohar, Tehsil and District Sialkot, through registered sale-deed dated 23-11-1953 to the present appellants. Subsequently in consolidation proceedings land comprising Khasra numbers 117, 122, 123 and 318 was given to the vendor in lieu of the said land. Respondent No,1 Said Ahmad on 23-11-1954, filed suit for pre-emption on the ground that he was co-sharer in Khata and also owner in the same Patti or Taraf. His case was that the land in dispute was situated in Taraf Amir Khan where his own land was also situated therefore, he had superior right of pre-emption on that account. Due to change of Khasra numbers in the consolidation proceedings the plaintiff filed amended plaint giving Khasra numbers of the land allotted to vendor in lieu of the land sold by him. The predecessor of the present appellants Qaim Din (vendee) filed written statement in which he denied the existence of right of pre-emption in the plaintiff and it was specifically pleaded in the written statement that in the village there was no regular Patti or Taraf or sub division present nor the same is present now due to which the plaintiff could maintain the suit on the basis of ownership of land in the same Taraf or Patti. The controversies arising from the pleadings of the parties were reflected in the following issues framed by the learned trial Court.
(1) What are the Khasra numbers of the land sold by defendant No,1 in favour of defendant No,2 after the consolidation of holdings? On plaintiff.
(2) Whether the plaintiff's right to pre-empt is superior qua vendee vide ground given in para No,3 of the plaint? On Plaintiff.
(3) Whether the alleged sale price was fixed in good faith or paid? On vendee.
(4) If not, what is the market value of the land in suit?
(5) Whether the suit for pre-emption is not competent on account of the consolidation of holdings in the village? On defendants.
(6) Whether the plaintiff's suit is barred as the Khasra numbers which have been allotted in lieu of the land in suit on consolidation of holdings have been given in the plaint after the expiry of period of limitation? On defendant.
(7) Whether the plaintiff has waived his right of pre-emption? On defendant.
(8) Relief.
' The plaintiff in support of his case examined himself as P.W.1. He also examined Rehmat All as P.W.2. His documentary evidence consists of copy of pedigree table Ext. P1, Parcha Zamindara Ishtimal Exts. P2 and P3, copy of sale-deed Ext.P4 and copy of Parcha Zamindara Ishtimal Ext.P5. In order to ascertain the market price of the land a Local Commissioner was appointed before whom Muhammad Safdar son of Ch. Nawab Ahmad was examined as witness No,1 and Amir All Patwari Halqa Adalat Garah was examined as witness No,2 whereas Haji Qaim Din defendant No,2 was also examined as witness. The Local Commissioner submitted his report on 23-10-1955 that according to his opinion the market price of the land could not be more than Rs,4,250.
3. On the other hand, the defendant No,2/the appellant examined Nawab Khan defendant Nod as D.W. 1, Chiragh Din as D.W.2, Nazir Baig as D.W.3, Muhammad Din as D.W.4, Allah Rakha as D.W.5 and he examined himself as his own witness as D.W.6. The documentary evidence produced by the appellants consists of agreement of sale Ext.D1 and sale-deed itself as Ext.D.2.
4. After appraising the evidence of the parties, the learned trial Court decreed the suit by judgment dated 9-11-1955. It was held that the plaintiff did not establish that he was co-sharer in Khata.
However, a finding was recorded that he was proved to be owner of land in the same Patti i,e, Traf Amir Khan. The appellant/vendee feeling aggrieved filed appeal before the learned District Judge which was dismissed through judgment dated 20-5-1957. He filed R.SA. No, 216 of 1957 before this Court which has also been dismissed by learned Single Judge through judgment dated' 9-2-1967 which has been assailed in this appeal. Learned Single Judge, held that the land given in lieu of land in dispute in consolidation could be followed for pre-empting the same. Regarding the crucial question of ownership of plaintiffs in same Patti the learned Single Judge dealt with this aspect of the case as under:-- "I hold that since the findings of both the Courts below are that the plaintiff-pre-emptor is a co- owner in the Patti, Taraf, sub-division Amir Khan, whereas the defendant-vendee is not, this finding is not open to challenge in this appeal. This finding is based on proper evidence- in the form of Exs.P1, P2 and P3, which confirm the existence of this Patti. Coupled with them, is the statement of the plaintiff- pre-emptor and the Patwari."
5. Learned counsel for the appellants did not challenge the correctness of the decision of the learned Single Judge on the question of perceptibility of land given in consolidation for the original land sold whereas he challenged only the other part of the judgment regarding existence of sub- division or Patti.
6. The main burden of argument presented by learned counsel for the appellants in support of this appeal was that merely because in the revenue papers it was recorded that a particular Taraf or Patti was existing in the village which was not proof by itself that there was recognised sub-division in the village as such the respondent/plaintiff was not entitled to decree merely on the basis of entry in the Revenue Record without further proving the existence of recognised sub-division in the village. In support of his argument, he placed reliance on judgments reported as Wazir Din v.
Hidayat and 2 others 1973 SCMR 254, Gul Muhammad and others v. Sadar-ud-Din and others PLD 1951 Lah. 437 and Ram Partap Khan v. Kishan Singh AIR 1937 Lah.
32. He also placed reliance on the following reported judgments; Pakhar Singh v. Labhu Ram and another AIR (34) 1947 Lah. 322, Waryam Singh v. Mahtab Singh and others Civil Appeal No,1217 of 1910, Sher Singh v. Maluk Singh and another Case No, 518 of 1902, Basawa Singh v. Natha Singh and others Civil Appeal No, 196 of 1912 and Uttam Chand v. Mehtab Singh and others (Second Civil Appeal No, 1347 of 1921) in support of his arguments that mere production of Revenue Record where name of particular Patti was mentioned was not sufficient to discharge the onus unless the evidence was produced to trace the history of the village and existence of recognized Patti and the kind and quality of evidence which was required to be produced.
7. In the case reported as 1973 SCMR 254 their Lordships held that for the purposes of pre- emption within the meaning of section 15(c) secondly, the mere word "Patti" whether in the record or otherwise does not by itself establish a sub-division of the village. The rule laid down in PLD 1951 Lahore 437 and AIR 1937 Lah. 32 was approved.
8. We have examined in detail the documentary as well as oral evidence produced by the plaintiff from which it is manifest that no evidence was led that Patti Amir Khan was a recognized sub- division of a village. It appears that the plaintiff merely relied upon the entries in the Revenue Record in which this Taraf was named as Taraf Amir Khan and no effort was made to produce evidence to prove as to whether it was recognized sub-division. The other reported judgments from Indian Jurisdiction supra referred to by the learned counsel for the appellants laid down the rule as to in what manner the recognized sub-division of the village for maintaining a suit for pre- emption on the ground of ownership of land in the same Patti has to be proved. In judgment reported as Parbhu v. Shamsud Din and another AIR (35) 1948 Lah. 199 it has been held that in order to determine whether a particular Patti was a recognized sub-division of a village in the true sense of that term reference must be made to the Kaifiyat-e-Dehi of the village and it should be ascertained whether the sub-division of the village was between various branches of one family or whether these sub-divisions were made by the Revenue authorities for fiscal purposes only. It has also been remarked that subsequent history of the ownership in the sub-division was not the determining factor in order to find out that the sub-divisions when originally founded were homogeneous in descent as well as in area. To the same effect is the view held in the other reported judgments. Considering the case in the light of these reported judgments and the criteria laid down in them to prove recognised sub-division or Patti, the evidence produced by the plaintiff falls far short of the legal requirement to prove that Patti Amir Khan was a recognised sub-division.
It could not be so held merely because in the Revenue papers it was recorded as Patti Amir Khan unless other evidence was produced in respect of history of the village to prove that it was recognised sub-division in the true sense of the term as used in the Pre-emption Act.
9. Faced with this difficulty, learned counsel for the respondents/decree holders attempted to overcome it by arguing that since there was no specific issue whether Patti Amir Khan was recognised sub-division and such an issue having not been got framed by the appellant therefore, the appellants could not maintain that the evidence should have been produced for proving recognised sub-division of the village. We are afraid, in our opinion, the argument is plainly unsound. The plaintiff in the plaint pleaded that he had superior right of pre-emption being owner of the land in the same Patti. The defendant/vendee as noted above raised a specific plea that the village did not have any such recognised sub-division or Patti on which the relevant issues framed is as under:-- "Whether the plaintiff's right to pre-empt is superior qua the vendee vide ground given in para No,3 of the plaint? (OP)
' It will thus be seen that the issue as framed is comprehensive and it was incumbent upon the plaintiff to lead evidence to prove his superior right of preemption which could not be established unless evidence was led that Patti Amir Khan where his land was situated was a recognised sub- division of the village. It appears that this aspect of the case has not engaged the serious consideration of learned Single Judge. The evidence produced by the plaintiff to prove his superior right of pre-emption on the ground of ownership of land in the same Patti does not satisfy the requirement of law regarding proof of distinct sub-division of the village which should have been proved by producing evidence that this area was a compact area which could be differentiated from others as held in PLD 1951 Lah.
437.
10. For the foregoing reasons, the findings that the plaintiff had superior right of pre-emption are not sustainable in law which are hereby set aside and reversed. The appeal succeeds. It is accepted. The judgment and decree passed in favour of respondent/plaintiff is hereby set aside and his suit stands dismissed-with no order as to costs.