1. MUHAMMAD AFZAL ZULLAH, CJ.---This appeal through leave of the Court is directed against the dismissal by the High Court, of appellant/vendee's Constitutional (Writ) Petition; which had arisen out of a pre-emption matter decided by the Revenue Authorities, as the respondents/plaintiffs' side had pleaded the superior right of pre-emption as a tenant, under the Land Reforms Regulation.
2. Leave to appeal was granted on noticing the facts and point as under:-- "The petitioner/defendant /vendee purchased about 281 kanals of land, A suit for pre-emption was riled by Farman Ali and Ajaib respondents on the ground that the said land was under their tenancy and therefore, they had first right of pre-emption under paragraph 25 of Martial Law Regulation No. 115 of 1972. The Collector accepted the plaintiffs' claim regarding about 140 kanals and decreed the suit to that extent accordingly. On the petitioner's appeal the Additional Commissioner held that there was no evidence to show that the plaintiffs were the tenants on the date of the decree, therefore, the vendee's (petitioner's) appeal vas allowed and pre-emptors' suit was dismissed in its entirety. On plaintiffs' revision a learned Member, Board of Revenue reversed the order of the Additional Commissioner and restored the order of the Collector. The petitioner/vendee then moved the High Court in its Constitutional jurisdiction. His petition having been dismissed, he has now sought leave to appeal.
3. It was admitted from respondents/pre-emptors' side during the trial that except for 11 kanals 9 marlas the remaining land out of 140 kanals was never cultivated by the plaintiffs and that it was Ghair-Mumkin Khundar. There was also documentary evidence in the revenue records to show that the said land was Ghair-Mumkin Khundar. That being so, learned counsel for the petitioner has argued that the respondents Nos.1 and 2 (Plaintiffs) could not be treated as tenants on the said land as visualised by paragraph 25 of the M.L.R.
115. He has further urged that the mere entry of tenancy in the Khasra Girdawari without an indication of payment of rent would also lead to the same results. In support of these two propositions he has placed reliance on Bakhtawar Shah and others v. Member, Board of Revenue and others 1985 SCMR 348 and Abaad Ali and another v.
4. Muhammad Din 1981 SCMR742.
5. Primes facie these judgments support the contentions of the learned counsel. Leave to appeal accordingly is granted."
6. Learned counsel in order to support his plea as noted in the leave grant order read the statement of Farman Ali P.W. One of the respondents/plaintiffs in its entirety. Both the learned counsel appearing for the parties agreed that this deposition does not leave anything in doubt that except for about 11-1/2 kanals of 113 the land, the remaining entire suit land was Ghair-Mumkin Khundar which was not under tenancy. The plaintiff himself made categorical statement that except for "8/10 kanals" of land, the remaining land was not under cultivation.
7. Accordingly, when seeing that on merits and on the point noted in the leave grant order there was nothing left to defend this appeal, learned counsel for the respondents/pre-emptors raised, as he put it, a legal objection. Precisely his argument is that the manner in which the argument has been raised from the appellant's side before the Supreme Court was neither. Advanced before Revenue Authorities nor before the High Court instead the appellant's plea then was that the plaintiffs' plea as a tenant was not sustainable: Because this right was not available at all the three relevant stages; namely, at the time of transaction, filing of the suit and at the time of the decree. On his request we examined the averments and arguments advanced from the appellant's side at different stages. There seems to be some force in the technical objection raised from the respondents' side that the case of the appellant was not put in the same manner as it was advanced before this Court at the time of grant of leave to appeal.
8. Be that as it may, when we asked the learned counsel whether the respondents/plaintiffs' position is in any way better than that of the appellant/defendant/vendee; because, as stated above the plaintiffs had categorically admitted the factual part of the plea raised from the appellant's side to which he submitted that he had nothing to answer. The admission by the plaintiffs was more than once in the same deposition and no doubt was left in it. Accordingly, when the factual reality is undeniable we decline to grant any extraordinary weight to his technical objection as against similar admission made by the respondents/plaintiffs themselves.
9. After some discussion in order to create goodwill between the parties the learned counsel for the appellant offered to the learned counsel for the respondents that the appellant would allow the decree to stand in favour of the respondents to the extent of double the area which was under their cultivation as tenant. Accordingly, on the agreement of both the learned counsel 23 kanals of land including 11 kanals 8 marlas which has been mentioned specifically as under cultivation is allowed to remain with the respondents/plaintiffs/decree-holders. Their suit with regard to the remaining land shall stand dismissed. Thus this appeal is partly allowed with the above modification in the decree. There shall be no order as to costs.