Sale of land measuring 16 kanals 17 marlas in favour of defendants 1 and 2 (petitioners herein) through Mutation No-1257 attested on 13-12-1972 was pre--empted by Haji Abdul Ahad Khan respondent herein by filing Suit No.61/1 in the Court of Senior Civil Judge Peshawar. It was alleged that the plaintiff had earlier purchased land measuring one kanal 8 marlas out of Khasra No. 1082 bearing Khata No. 256/1064 through a registered sale deed dated 7-4-1971 but it was not given effect in the revenue record hence the vendor re-sold the same land with the other suit land in favour of the defendant-vendees. To the extent of one kanal 8 marlas the impugned sale was challenged to be ineffective on his rights and prayed for declaration accordingly. Regarding rest of the land, subject matter of the sale, plaintiff asserted his superior right of pre-emption and prayed for its possession in exercise of his superior right of pre-emption on payment of Rs.9,840. Superior right of pre-emption was based on co-sharership, participator in immunities, appendages and contiguity. Defendants 1 and 2 resisted the plaintiff's suit by filing their joint written statement while defendants 3 and 4 (vendors) did not appear and were proceeded against ex parte. In their written statement the contesting defendants raised several legal and factual pleas to the maintainability of the present suit. The sum of Rs.21,000 was stated to be the actual sale consideration fixed in good faith and paid to the vendors. They, however, showed their ignorance about the earlier sale of part of the suit land in favour of the plaintiff through the mentioned registered sale-deed and further denied the plaintiffs superior right of pre-emption.
2. The learned trial Judge framed issues arising out of the pleadings of the parties and after recording evidence thereon dismissed the plaintiff's suit on 22-3-1979. However, on the plaintiff's appeal the learned Additional District Judge, Peshawar vide his order dated 13-11-1979 reversed the judgment and decree of the trial Court and decreed the plaintiffs suit on payment of Rs.21,000. The judgment and order of the appellate Court were successfully challenged in revision. The learned High Court remanded the case, after setting aside the judgments and decrees of both the Courts below, for recording further evidence of the parties and fresh decision. In pursuance of the order of remand the learned Senior Civil Judge after recording further evidence of the parties while giving his finding held that the plaintiff was the owner and in possession of land measuring one kanal 8 marlas out of khasra No. 1082 in khata No-356 through a valid purchase. He, therefore, found him to be its owner and declared that its re-sale to the vendees was void and ineffective. On such finding plaintiff was held to be co--sharer in Khata No.256 and decreed the plaintiffs suit to that extent. The plaintiff's suit regarding land in Khata No.260 was dismissed for the reasons given there in his judgment dated 31-3-1985. Dissatisfied with the judgment and decree both the parties challenged the same in their respective appeals. The learned Additional District Judge after hearing the learned counsel for the parties accepted the plaintiff's appeal and in consequence thereof decreed the plaintiff's suit in respect of the entire suit land while the appeal of the defendant- vendees was dismissed vide consolidated judgment and order dated 2-9-1985 of which the present revision petition has arisen.
3. The learned counsel for the petitioners has challenged the judgment and decree of the learned Additional District Judge on the following grounds:-- (1)That plaintiff has purchased land measuring one kanal 8 marlas out of khasra No.1082 total measuring 6 kanals 1.6 marlas through a registered sale-deed dated 7-4-1971 in the column of ownership but contrary to the fact during the pendency of the suit collusively this sale was given effect in the revenue record through mutation No.1233 attested on 20-5-1974 in the column of cultivation. On the basis of this wrong entry both the Courts below have held the plaintiff co-sharer in Khata No.256.
(2)That the plaintiff has failed to prove to be an owner in shamilat but erroneously and through misreading of the record he has been held to have got his land contiguous to the suit khasra number comprising in Khata No.260.
(3)That possession under the sale was delivered to the plaintiff before the attestation of mutation hence the present suit instituted after one year of such transfer of possession was clearly barred by time.
4. After hearing the learned counsel for the parties and perusal of the record I find no merit in the first and third contentions. Admittedly plaintiff has purchased land measuring one kanal 8 marlas out of khasra No.1082 total measuring 6 kanals 16 marlas before the impugned sale. It was, therefore, rightly held by both the Courts below that subsequent sale of this much area was ineffective on the plaintiff's right. The question for determination, however, is whether by the sale of land measuring one kanal 8 marlas and preparation of Tatima in the column of cultivation the integrity of Khata No. 256 has been broken or not. According to the petitioners this sale was made in column of ownership and if it had been properly given effect in the column of ownership it would have resulted in splitting of khata at the time of preparation of subsequent jamabandi which was prepared during the pendency of the suit. That collusively in order to keep the khata intact and to retain the plaintiff as co-sharer in it the Revenue authorities illegally entered and got attested the mutation in the column of cultivation. There appears no force in the contention of the learned counsel. From the perusal of the registered sale-deed it is evident that Inzar Gul, the vendor, was recorded to be an owner of 101/168 share in khasra No. 1082 which comes to 4 kanals 1-1/2 marlas out of which land measuring one kanal 8 marlas was sold to the plaintiff. If the intention of the vendor was to make sale in the column of ownership this would have been expressed by sale of a specific share out of 101 shares of the total 168 shares in the column of ownership. However, the vendor did not do so and stated to have sold one kanal 8 marlas out of 4 kanals 1-1/2 marlas of which he was the owner in Khasra No.1082. Furthermore, it is evident from the record that Inzar Gul vendor was in hissadari possession of the entire khasra number, therefore, a Tatima was prepared whereby khasra No. 1082/1 measuring one kanal 8 marlas was allocated to the plaintiff. If the sale was in the column of ownership no such Tatima could have been prepared for it would have the effect of partition of the khasra number without notice and consent of all other recorded co- owners. Needless to say that sale in column of cultivation or preparation of Tatima when sale is about a portion of hissadari possession is a temporary affair and such sale is always subject to partition and adjustment of the right of the recorded co-sharers. No exception therefore, could be raised to the finding that on the basis of the aforementioned sale the plaintiff is a co-sharer in Khata No. 256 and on that basis entitled to the decree prayed for to that extent.
5. As far as the land in Khata No.260 is concerned, from the perusal of the record it is evident that certain khasra numbers which are shown as "Ghair Murnkin Lakhti" or `Rasta' and which is shamilat deh are contiguous to the suit Khasra numbers bearing khata No.260. In order to prove to be the owner in shamilat plaintiff has placed on file, in the statement of Patwari Halqa, a list of the owners of shamilat which is EX.P.W.1/4-R. In the list plaintiff figures at serial No. 94 and for reference of his proprietary holding Khata Nos. 227, 253, 269, 270, 321 and 234 are mentioned. The Patwari Halqa has also placed on file copy of the pedigree-table of the year 1929-30 in which Abdul Karim Khan, the plaintiff's father is entered as `Malik-e-Qabza' and there is a note in it of inheritance mutation No.628 of Abdul Karim attested on 31-3-1949 in favour of Abdul Ahad his son, Mst. Bibi Jan his widow and his two daughters. Confronted with these documents the Patwari Halqa when asked stated that Abdul Karim Khan is not mentioned to be an owner of the land (shamilat) and that it was for the Court to interpret Ex.P.W. 1/3 to find out whether Abdul Karim was an owner without or with shamilat of the land which he owned in the village. However, he clearly stated that the khatas of which reference is made in the relevant column at serial No.94 of the list are the same regarding which inheritance mutation No. 628 is attested. As already pointed out mutation No. 628 mentioned in the pedigrce--table is in respect of the land of which Abdul Karim Khan is shown `Malik-e-- Qabza' i.e. Owner without the share of shamilat. Such being the case on the one side there is the list of owners of shamilat and on the other there is a pedigree--table. The former is prepared by Patwari, allegedly, from the revenue record and the latter a copy from the settlement record to which presumption of correctness is attached. In the circumstances, the learned Additional District Judge erred in ignoring this aspect of the case in basing reliance on the list and in ignoring the pedigree-table and the inheritance mutation. Apart from the above the plaintiff did not lead any other evidence to prove that in addition to the land which he inherited from his father he has acquired some other land through purchase or otherwise with the share of shamilat. Consequently without going further into the question whether contiguity of `Ghair Mumkin Lakhti' and `Ghair Mumkin Rasta' with the suit khasra numbers and whether on its basis the plaintiff could claim to have got a superior right of pre-emption, the finding of the learned Additional District Judge with regard to khata No.260 is reversed for lack of legal evidence l in support of plaintiffs case that he was the owner in shamilat.
6. The contention of the learned counsel that possession was transferred to the vendee under an oral sale beyond the period of one year of institution of the suit has got no substance at a11. In reply to para 1 of the plaint wherein the sale is alleged to have taken place through Mutation No.1257 attested on 13-12-1972, the defendant-vendees in their written statement did not specifically deny it rather have stated that the land was purchased for Rs.21,000 and that neither any inflated amount is shown in the mutation nor the plaintiff has got superior right of pre-emption. It was never their case that the sale transaction was oral and under such oral sale possession had been transferred to them before the attestation of mutation. No exception could, therefore, be taken to the legal proposition that sale through mutation is pre-emptible within a period of one year from the date of attestation. For the reasons stated above, this revision petition is partially accepted, the judgment and decree of the learned Additional District Judge as far as it relates, to the land in suit measuring 3 kanals 15 marlas comprising in Khata No. 260/1075 are set aside and the plaintiff's suit to that extent dismissed. However, the judgment and decree of the trial Court regarding the plaintiff's ownership of land measuring one kanal 8 marlas out of Khasra No.1082 is maintained and that for possession by pre-emption of the remaining suit land (subject-matter of the sale) is also maintained on payment of Rs.15,000, the proportionate sale consideration. There shall be no order as to costs.