AKHTAR SAID, MEMBER.- The facts briefly are that the petitioner filed a suit of pre-emption against the respondents in the court of Assistant Commissioner/Collector which was dismissed on 30.5.1978. Against that decision the petitioner went in appeal to the Additional Commissioner (Revenue) who by his decision of 17.12.1979 remanded the case to the Collector again.
2. The Collector on 25.5.1981 decreed the suit in favour of the petitioner. The respondents went in appeal against this order to the court of the Additional Commissioner(Consolidation) who partly accepted it, and rejected the claim of the petitioner to khasra No.215/19. The present petition is against that order.
3. The merits of this case will be determined on the following arguments: i) The Collector in his decision dated 30.5.1978 decided the case against the petitioner on the issue of tenancy. He had not gone on to determine the other issues namely issues 4 to 6. When the case came up before the Additional Commissioner (Cons) he decided the issue relating to tenancy in clear words in his decision dated 17.12.1979. In his concluding paragraph the Additional Commissioner has said that the case is remanded for fresh decision on merits "keeping in view mv above observations". From this it is clear that fresh decision on merits meant issues 4 to 6, and not the issue of tenancy which had been decided by the learned Additional Commissioner in para 5 of his order where he says that "the learned Assistant Commissioner has erred in holding that his possession at the time of sale was not established". It is with regard to this issue and this observation that the above underlined reference is made in the remanding order, and which has the effect of saving this observation from the purview of the Collector's consideration. In other words it is dear that as far as the Additional Commissioner was concerned he had decided this point as to tenancy in 1979. ii) It was therefore necessary for the respondents to challenge this decision on this vital point of fact if they did not agree with it. They failed to do so. Therefore in law this point stands established against the respondents. iii) The Collector on 25.5.1981 was right when he assumed that the Additional Commissioner had already decided the factum of tenancy. He therefore went on to decide the other matters. iv) When the respondents went in appeal to the Additional Commissioner concerning the question of tenancy, they did so concerning a question which had already been decided by a court of concurrent jurisdiction, and could not be taken up again by him. However the Additional Commissioner wrongly took it up and gave his decision against the petitioner with regard to khasra No.215/19.
Regardless of the jurisdictional flaw in the decision of the Additional Commissioner, even on merits his conclusion with regard to possession/tenancy over khasra No.215/19 is erroneous, as the following arguments will show. v) Both in law and common sense possession and cultivation are two different things. A piece of land may be possessed without being cultivated for a particular crop or crops. The proof of possession comes from the column of cultivation in Register Girdawari, and if it is challenged, that challenge has to be proved with other evidence. Now, as regards the present case, the fact of the matter is that the possession of the petitioner over khasra No. 215/19 is established from the Girdawari prior to Rabi 1973. Before this Girdawari in the column relating to cultivation, his possession is shown in the words which means that as regards possession he continued to be in possession of this particular khasra number even if h&did not cultivate it and the land was entered as ( [(urdu text]). If ([(urdu text)]) land immediately passes out of the possession of the previous cultivator, there, can be no sense in recording him as its possessor by the words Even in common sense a tenant is not supposed to cultivate every bit of h tenancy in every crop. This would be unrealistic. It would be preposterous to assume that the moment a tenant leaves a piece of land under his possession as follow, he loses his possession over it It is therefore quite clear that the concept of possession and the concept of cultivation are two different things in he law relating to tenancy.
Vi) In the instant case the above position is further strengthened by the fact that the petitioner was in cultivating possession not only before Rabi 1973, but also immediately after it viz: in Kharif 1973, when this khasra number was cultivated, and cultivated by him. This too shows his constructive possession over this khasra number in the vital crop viz. Rabi 1973.
Vii) I would also mention the date of sale as relevant. The sale took place on 17.5.1973 i.e. After Rabi 1973. It is reasonable to presume that he was in possession on the date of sale in order for him to prepare the land for cultivation in Kharif of the same order. It may be noted here that girdawari is not possession, but a reflection of possession. Girdawari does not prove that somebody was in possession only on the day when it was recorded. Girdawari is a momentary look on a particular date at the flowing river of possession. In the present case I would presume that the river of the possession of the petitioner over the disputed khasra number was before and on flowing and after 7.5.1973, and it was merely "looked at" in the girdawari of Kharif 1973.
4. In view of the above arguments that I have discussed, I set aside the impugned order and uphold the decision of the Collector dated 25.5.1981.1 would accept the petition.