This Regular Second Appeal by Roshan Din and Muhammad Suleman/vendees/defendants, calls in question the judgment and decree passed by the learned Additional District Judge, Faisalabad dated 26-7-1987 whereby that Court dismissed the appeal filed by the appellants and affirmed the judgment and decree passed by the learned Civil Judge, 1st Class, Faisalabad dated 23-9-1977 decreeing the suit for pre-emption lodged by the respondent.
2. The facts, briefly stated, giving rise to this appeal, are that the appellants purchased agricultural land measuring 72 Kanals 19 Marlas situated in Chak No.226/RB, Tehsil and District Faisalabad in consideration of Rs.1,20,000 by means of registered sale-deed dated 26-10-1976 from Muhammad Sharif, Muhammad Siddique, Faiz Rasool, Muhammad Bashir, Muhammad Nazir and Asghar Ali.
Muhammad Maqbool respondent, as the nephew of the original owners, sued for pre-empting the above sale. The appellants in their written statement, pleaded that the respondent had associated with them in the negotiation of sale from inception to finish, was instrumental in the finalization of sale and so was precluded by his conduct to institute the suit for pre-emption; that the appellants were already tenants over the suit land before the finalization of sale and thus possessed better pre--emptive right qua the respondent. The learned trial Judge, on the survey of the evidence, concluded all the issues against the appellants and decreed the suit. On appeal, the learned first Court of appeal concurred with the finding of the trial Court on all the issues. Hence this appeal.
3. Learned counsel for the appellants contended that the two Courts below had misinterpreted and misconstrued the entries of Khasra Girdawari pertaining to Kharif 1976 wherein it was specifically mentioned that the appellants had been in cultivating possession of the suit land in Kharif 1976; that the concerned Patwari had incorporated the variation entry in abovementioned document Exh, P-4 on 29-10-1976. According to the learned counsel these entries conclusively established that the appellants were tenants of suit land under the sellers before sale and at the time of sale and so possessed preferential right of pre-emption qua respondent. It was next contended by the learned counsel for appellants that the contents of agreement to sell dated 5-10-1976/Exh, D-1 demonstrated that the appellants at the time of purchase of suit land were tenants over the suit land and had paid an amount of Rs.3,500 as rent of Kharif crop to sellers. Continuing, learned counsel stated that the testimony of D.W.1, D.W.2 and D.W.3 fully supported the entries of Khasra Girdawari Exh. P-4. On these circumstances, it was emphasized that the findings rendered by the two Courts below on issue of superior right of pre- emption suffered from misreading of evidence and was, therefore, patently illegal.
4. On the contrary, learned counsel for respondents, supported the impugned decision by raising an objection to the maintainability of the instant appeal. According to the learned counsel, the question "as to whether the appellants were tenants or not under the sellers at the time of sale", was purely a question of fact and stood concluded by the two Courts below on correct assessment of evidence. In view of this, it was urged that this Court had no jurisdiction under section 100 of the Code of Civil Procedure to interfere with such finding of fact.
5. From the foregoing narration of facts, the circumstances of the case and the arguments of the parties, the only question falling for determination is "whether the appellants were in occupation of suit land as tenants at the time of sale and so possessed better pre-emptive right qua the respondent. No doubt the first right of pre-emption in respect of the land comprised in tenancy of a tenant was conferred under sub-para 3(d) of para 25 of the Martial Law Regulation 115. The term "tenant", however, was not defined in that Regulation. Clause (26) of section 4 of the West Pakistan Land Revenue Act defining tenant shall have to be taken into consideration for the purpose of deciding this case on the principle of reference. The clause 26 reads as follows:-- `tenant' means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person, and includes the predecessors and successors-in --interest of such person, but does not include--
(a) a mortgagee of the rights of a land-owner;
(b) a person to whom a holding has been transferred or an estate or holding has been let in farm, under the provisions of this Act, for the recovery of an arrear of land-revenue or of a sum recoverable as such an arrear; or
(c) a person who takes from Government a lease of unoccupied land for the purpose of sub-letting it;"
6. From the above clause, it becomes evident that it prescribes three attributes of a tenant. Firstly, that he shall hold land, secondly, that he shall hold it under another person/landlord and thirdly, that he is liable to pay rent for the use and occupation of it to such other person. All these three attributes concur to create legal relationship of landlord and tenant. Seen from this angle, it can be safely said that the appellants, in order to non-suit the respondent --were required . to establish by unimpeachable evidence that they were in possession of the suit land at the time of sale and used to pay rent to the sellers. In order to do so, the appellants produced Sadar-ud-Din, D.W.1, Muhammad Ibrahim, D.W.2 and Muhammad Suleman (one of the appellants) as D.W.3.
Muhammad Ibrahim, D.W.2 stated that the appellants were in possession of the suit land from Kharif 1976. He did not state that at what time appellants were inducted into possession on the pre- empted land by the sellers. Sadar-ud-Din, D.W.1 proved the execution of receipt dated 5-10-1976, Exh, D--2. He stated that he was signatory to this receipt. He did not depose at all that the sellers had received the amount mentioned therein as a rent. Then comes Muhammad Suleman, D.W3 who went to the witness-box and stated that the appellants were cultivating the suit land as tenants six months prior to the execution of agreement to sell dated 5-10-1976; that the sellers had received Rs3,500 as the share of the standing crop. In addition to the above oral evidence, the appellants relied upon the agreement to sell dated 5-10-1976, Exh, D-1, registered sale-deed dated 20-10-1976 and entry of Khasra Girdawari relating to Kharif crop, 1976 embodied in Exh, P-4. The perusal of the agreement to sell indicates that the appellants were inducted into possession under agreement to sell. It makes no mention of receipt of Rs.3,500 as a rent from the appellants of standing Kharif crop. Furthermore, it does not show at all that the appellants were the tenants of the suit land at the time of execution of the agreement to sell. Similarly registered sale-deed dated 20-10-1976 also lacks any information regarding the claim of the appellants being tenants. The perusal of Exh. P-4, Khasra Girdawari shows that the concerned Patwari incorporated change on 29-10-1976 in harvest inspection report. Neither this witness was produced into witness-box nor his diary was summoned to show that this entry was a genuine one. No Girdawar was produced to establish that this entry of variation was confirmed by him as required by para 9.09 of the Punjab Land Record Manual. From the above analysis, it is, but, clear that no evidence, sufficient in quality and quantity, was led in order to prove that the appellants were occupying the pre-empted land at the relevant time as tenants and had purchased it in recognition of their better pre-emptive right.
The entry of Khasra Girdawari which was made after nine days of finalization of registered sale- deed does not exude confidence and cannot be taken as sufficient and satisfactory proof of the claim of appellants. On this material, the two Courts below were correct in coming to the conclusion that the appellants had failed to substantiate their claim of preferential right of pre- emption qua the respondent as tenants. This concurrent conclusion of fact is fully in accord with the bulk of evidence and is free from any taint of misreading and non-reading of evidence. It is, thus, not susceptible of interference under section 100 of the Code of Civil Procedure.
7. In the light of foregoing discussion, this Regular Second Appeal is found to be wholly devoid of merit and is accordingly dismissed. The appellant shall bear the costs of proceedings throughout.