' The facts giving rise to this case, are that the petitioners brought suit, for pre-emption on the basis of their superior right of pre-emption, in the Court of AC/Collector, regarding 127 Kanals-8 Marlas of land (2545/8457 share) out of Khata No,10 Khatauni Nos.51 to 55 and 2545/25371 share out of Khata No,11, situated in village Khan Bahadargarh, Tehsil Kabirwala. Relevant issues were framed and adjudicated upon. The suit was decreed on 28-9-1980 to the extent of 83 Kanals 15 Marlas. Being aggrieved by the said order the respondents filed an appeal before the Additional Commissioner which was dismissed in default on 20-11-1984. This order was assailed in revision, before the Member (Revenue), Board of Revenue who vide his order dated 24-3-1986 remanded the case subject to payment of Rs,500 to the petitioneRs, On remand, the Additional Commissioner vide his order dated 17-1-1988 set aside the decree of the Collector. Hence this revision petition under paragraph 25 of MLR-115.
2. The learned counsel for the petitioners contended in the written arguments submitted by him that Allah Bakhsh had not been proved to be a coowner in the Khata in dispute as the properietary rights of the land allotted to him as a tenant under Land Reforms 1972 had not been conferred upon him till the passing of the decree. He had instituted a suit for pre-emption as a tenant and it cannot be denied that he was not tanant in Khata in dispute. When a person has two different rights of pre-emption, he can claim on the basis of superior right which Allah Bakhsh had as a tenant even if it (is) accepted without conceding that he had become a co-sharers in the Khata.
The principle of sinker is not mentioned in the Punjab Pre-emption Act, 1913 and it has been defined by the Courts as "when a vendee associates somebody else with him in the bargain who has inferior right against the pre-emptor then he will sink down to the level of the person with whom he associates". In the present case the status of Allah Bakhsh is to be seen either as a co-sharer or a tenant and the principle of sinker is not applicable. The judgment relied upon by the learned Additional Commissioner (PLD 1983 SC (AJK) 188) relates to the Pre-emption Act of Azad Jammu and Kashmir but not to the Punjab. When a person has a superior right and also inferior right he cannot be condemned on the basis of his inferior qualification. The learned counsel relied on PLD 1982 Lah. 568, PLD 1977 Lah. 376, PLD 1912 SC 59 and AIR 1926 Lahore '300 and prayed that the order of the Additional Commissioner may be set aside.
3. The learned counsel for the respondents maintained in the written arguments that from the sale- deed Exh. D1 as well as from the plaint it has been established that respondents had purchased 2445/8457 share of joint Khata i,e., 422 Kanals-17 Marlas in Khewat No,10. The transaction on the basis of which pre-emption rights were claimed was not in respect of any specific field number but a share in the joint holding was alienated in favour of the respondents. In such circumstances, the right of pre-emptors cannot be held to have been established unless the alienation is in respect of the specific and identifiable fields of which the pre-emptors must be in possession as tenant.
Secondly that Allah Bakhsh petitioner as P.W. 2 admitted that he was owner of 12-1/2 acres in this joint khata which he got as a result of Land Reforms. Thus he cannot be said to be in cultivating possession as tenant. The learned counsel placed reliance on Judgment of the Board of Revenue in ROR Nos. 3010 and 3020 of 1982, Mohabat etc., v. Iqbal Hussain and prayed that the revision petition may be dismissed with costs.
4. I have considered the arguments and perused the case record. It was found by the the Collector that the petitioners were in cultivating possession of specific Khasras number measuring 278K-6M.
The respondent had purchased 2545/8457 share of joint Khata in which the petitioners were tenants and therefore the share of the petitioners as tenant was calculated to be 83K-15M. The tenancy of the petitioners has been established beyond any doubt. If by sheer coincidence Allah Bakhsh had become owner of the land under the Land Reforms of 1972, this fact cannot go against him because in the first instance proprietary rights of the land have not been proved to have been given to him till the suit was decreed and secondly he cannot be condemned for his inferior right which he acquired subsequently under the new law: The principle of sinker is not applicable to the present case because Allah Bakhsh did not associate with any one inferior to him but himself had acquired the second right of pre-emption as a land-owner (subsequent to the decree). The suit was therefore, correctly decreed by the AC/Collector upto the extent of respective shares of petitioners as tenant and the suit is not hit by partial pre-emption because the respondents 'were not able to adduce any evidence in support of issue No,4, The respondents were not similarly able to controvert that issue No,6 regarding the petitioners/plaintiff's superior right of pre-emption. The upshot of the foregoing discussion is that the revision petition succeeds, the impugned order is set aside and the order of the Collector dated 28-9-1980 is restored.