' This Civil Revision calls in question the judgment and decree of the learned District Judge, Bhakkar, passed on the 23rd of April, 1983, whereby he, accepting an appeal against judgment and judgment of the Civil Judge, Bhakkar, had dismissed the suit for pre-emption on the ground that the pre emptors had failed to establish superior right of pre-emption.
2. The facts leading up to the Revision, concisely stated, are that Muhammad Hassan and others had instituted a suit on the 12th of February, 1981, for possession of the land in question through pre- emption on payment of Rs,1,000.00 (rupees one thousand only) as the land had actually been sold for the said amount, though inflated amount of Rs,12,000.00 (rupees twelve thousand only) was incorporated in the sale-deed (Exh.D.2) registered on the 13th of February, 1980. The pre-emptors claimed superior right being collaterals of the vendor and also Shareek-i-Khata, the characters which were not possessed by the vendee. Mithu vendee, now the respondent, had resisted the suit mainly on the ground that he was in possession of the suit land as tenant before the sale and, therefore, had superior right of pre-emption than that of the pre-emptors. He also defended the sale price of Rs,12,000.00 (rupees twelve thousand only) which was bona fide paid and represented the market value. He had also claimed improvements. The learned trial Court had directed the parties to bring evidence on the following issues:
(1) Whether plaintiffs have superior right of pre-emption? OPP.
(2) Whether sum of Rs,12,000 was fixed in good faith and actually paid as sale price of the suit land? OPD.
(3) If Issue No,2 is not proved, what was the market value of the suit land at the time of sale? O.P.
Parties.
(4) Whether defendant spent Rs,3,000 on improvement of the suit land? OPD.
(5) Relief.
' Finding of the learned trial Court on Issues Nos.2 and 3 was that the sale amount, that is Rs,12,000.00 (rupees twelve thousand only) represented the market value and was also paid by the vendee. Both the issues were found in favour of the vendee and the verdict was not disturbed by the appellate Court, and also is not in question before this Court.
3. Issue No,4 has been decided against the vendee-respondent as there was no evidence on the improvement he had allegedly effected on the land. The respondent has not preferred a cross appeal or revision. The decision of the learned trial Court on this issue, therefore, remains intact.
4. The real contest between the parties, however, is on Issue No,1 which was decided by the learned trial Court against the petitioners and was reversed by the learned appellate Court.
5. Mithu respondent had purchased 463/3240 share of the joint Khata on the basis of a decree dated the 29th of July, 1976 (Exh.P.10) which was subsequently incorporated in record of rights (copy Exh.P.11). Thus, the respondent had become co-sharer in the joint Khata out of which the land in question was sold by another co-sharer to the respondent. The respondent was also in possession of another character that is being tenant in respect of the sold land. Copy of Khasra Girdawari (Exh.P.13 & D.1) described him as tenant under co-sharer Khadim Hussain. Now the only moot point is if Mithu, the tenant of joint Khata had lost the status of tenant after having already purchased a share out of joint Khata and could claim superior right of pre emption as envisaged in para. 25(3)(d) of the Martial Law Regulation No,115.
6. Learned counsel for the petitioners has referred me to couple of decisions, one of which is of the Karachi High Court, Muhammad Bashir and others v. Board of Revenue and others 1983 CLC 930 and the other ruling is of the Lahore High Court cited as PLD 1988 Lah. 277 Mithoo v. Member, Board of Revenue, Punjab, Lahore and others. It was observed in both the cases that a tenant of joint Khata after he purchases a share thereof becomes co-owner therein and loses his right of pre- emption in respect of the remaining area sold to the pre-emptor.
7. The cited rulings do not lay down good law on the subject. In fact, the Supreme Court's verdict enunciated in Muhammad Khan and others v. Muzaffar PLD 1983 SC 181 was not discussed in both the said rulings. The Supreme Court, reiterating well-known principle of law of pre-emption that the pre-emptor in order to succeed should have superior right at three stages, that is at the time of sale, at the time of suit and also at the time of decree, held that the tenant having superior right recognized by para.25(3)(d) of M.L.R.115, shall retain the benefit of the right conferred on him even if he purchases some land out of joint Khata and becomes co-sharer.
8. Learned counsel for the respondent has also adverted me to two Supreme Court decisions, Nazir Ahmad v. Mst. Sardar Bibi and others 1989 SCMR 913 and Ghulam Mustafa and others v. Mst.
Muhammadi Begum and others 1991 SCMR 432 to apply their dictum to the facts of this case by analogical deduction. In the cited cases, the tenant had purchased share of one of co-sharers of the property and his plea was that he having become co-sharer in shop, ejectment proceedings against him were incompetent. The plea of the tenant was repelled as he had not ceased to be the tenant in respect of the property of which he was in possession as tenant.
9. In the instant case, the respondent, in spite of having purchased share out of the joint Khata, had retained character of a tenant in respect of the land in question and the superior right conferred on him by para.25(3)(d) of M.L.R. 115 existed not only at the time of sale but also at the time of institution of the suit and the decree. The petitioners, having, inferior right than that of the respondent at the relevant time, could not claim possession of the land on the basis of pre- emption. The impugned judgment and decree, in the circumstances, are unexceptionable.
10. Consequently, the revision petition is dismissed leaving the parties to bear their own costs.