MIAN SAQIB NISAR, J. - Briefly stated the facts giving rise to the present appeal are that Haider and another (plaintiffs-respondents) filed a suit for possession by way of pre-emption challenging the sale made by Mst. Hassan Bibi in respect of land measuring seven kanals and three marlas as described in the headnote of the plaint, situated in village Mallian, Tehsil Phalia, District Gujrat. The mutation No. 327 regarding the above sale was sanctioned on 16.10.1972. The sale consideration was shown as Rs.3,000/-.
2. The suit was contested by the defendant (appellant and the following issues were framed by the Trial Court from the pleadings of the parties:-
(1) Whether the plaintiffs have got superior right of pre-emption? OPP
(2) Whether the plaintiffs have waived their right of pre-emption? OPP
(3) Whether a sum of Rs.3000/- was fixed in good faith or actually paid as sale consideration of the suit land? OPD
(4) If issue No. 3 is not proved, then what is the market value of the suit land? OPP
(5) Whether the suit is time-barred? OPP
(6) Relief.
3. Learned Civil Judge gave findings on issue No. 1 against the plaintiff and dismissed the suit, vide judgment and decree dated 19.6.1975. However, findings on other issues are not relevant for the purpose of this appeal.
4. Feeling aggrieved by the said judgment and decree, Haider and another (respondents) preferred an appeal which was partly accepted and the judgment and decree of the learned lower Trial Court was modified to the extent that Haider, etc. Were entitled to the decree of the suit land minus 46/270 part of khasras Nos. 238, 239 and 249 on the payment of Rs.2854/-. Against this judgment of the lower Appellate Court Akbar Ali (defendant-vendee) has come up in this appeal.
5. It is contended by the learned counsel for the appellant that he was the tenant in khasra Nos.
238, 239 and 249 alongwith his brother Nazir and had 1/2 share in the tenancy. According to the learned counsel as the appellant had superior right under Martial Law Regulation 115 qua the land under his tenancy, therefore, to the above extent, the suit of the respondents could not be decreed.
It is stated that while giving his findings on issue No. 1, the Appellate Court has decreed the suit of the exercise minus 46/270 part of each of khasras Nos. 238, 239 and 249. This is the fundamental error committed by the Appellate Court. It is stated that 46/270 is in fact double of 23/270.
6. It may be pertinent to point out that in para No. 12 of the judgment as also die decree, the suit of the respondents is allowed minus 26/270 part of each of khasra numbers mentioned above. The learned counsel for die respondents has not been able to justify the above position.
7. I have examined the record. The lower Appellate Court has definitely fallen in error while specifying the share for which the decree to the respondents was being refused. Admittedly, the appellant was a tenant to die extent of 1/2 share in the khata numbers mentioned above and no decree in view of Martial Law Regulation 115 could be passed regarding die same, therefore, as the share of the vendor was 23/270 consequently, the land to be excluded from the decree is 1/2 of 23/270 which comes to 23/540.
8. The other point argued was that as the appellant has a superior right in view of Martial Law Regulation 115, therefore, the suit of the respondents should have been dismissed in toto, as held by the Trial Court. I am afraid that this contention is not well-founded, because the appellant could only defeat the claim of the respondents to the extent of his tenancy rights and nothing beyond that. Particularly, when the right of pre-emption of the respondents was fully established. This contention is, therefore, repelled.
9, In view of the above, I accept this appeal partly, modifying the decree f the lower Appellate Court to the extent that the respondents are entitled to the extent of the suit land minus 23/540 share in each of khasra Nos. 238, 239 and 249. No order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.