Land measuring 2 Kanals and 8 Marlas situated in Mauza Shah Jewans was owned by Abdul Rehman's. He sold the aforesaid land to the petitioner Jalal Khan vide registered sale-deed, dated 17-8-1977 for a consideration of Rs.1,700 Mst. Parveen Akhtar, respondent No. l deceased who is now represented by her heirs, pre-empted the said sale on the ground of being collateral of vendor.
2. The suit was contested on a number of grounds primarily that the petitioner was a tenant on the land in dispute and, therefore, by virtue of para. 25, Land Reforms Regulation No. 115, he had a preferential right qua the pre-emptor. Necessary issues were framed and the suit was tried. The learned trial Court found that the pre-emptor had a preferential right and that the petitioner was not a tenant on the land in dispute. Accordingly, the suit filed by respondent No. 1 was decreed for a consideration of Rs.1,700. The petitioner filed an appeal before the learned District Court which was dismissed on 17-3-1973, hence this revision petition.
3. The learned counsel for the petitioner has assailed the finding on issue No.6 (superior right) only.
Accordingly to him Shahadat Khan attorney of the pre-emptor who appeared as P.W.1 admitted that the petitioner was in cultivating possession of the land in dispute. He also placed reliance on EXh.D.I, Khasra Girdawari, to contend that the petitioner was recorded as a tenant therein. The learned counsel for respondent No.4, on the other hand submitted that the matter stands concluded by a finding of fact on the basis of evidence and was not, therefore, liable to interference in exercise of revisional jurisdiction.
4. I have considered the submissions made by the learned counsel and have perused the record.
According to Exh.D.1, the Khasra Girdawari, the petitioner is recorded as a tenant under Ahmad Khan in Kharif 74 and then he has been so recorded under all landowners in Kharif 1977. This entry was made on 17-10-1977. According to learned trial Court this entry had been recorded after the sale and does not establish that the petitioner was a tenant on the land in dispute on the date of sale. The judgment of the learned first appellate Court is based on the premises that the petitioner was a co-sharer and, therefore, could not be a tenant. This finding is based on the Jamabandi (Exh.P.3) for 1980-81 and basis of this entry was the sale in dispute. There is no evidence on the record to show that petitioner was a co-sharer on the date of sale.
5.The findings of the trial Court that the petitioner was not a tenant on the date of sale and the finding of the learned first appellate Court that he was a co---sharer (on the date of sale) are against the record.
6. EXh.D.I, copy from Register Khasra Girdawari comprises three sheets. The first sheet is for the crops from Kharif 79 up to Rabi 1982 and on a part of the land of the joint Khata, the petitioner is recorded as a tenant from Rabi, 1980. The total area on this sheet is 48 Kanals and 3 Marlas. The second sheet relates to Kharif, 1973 to Rabi, 1975. Total area on this sheet is 25 Kanals and 11 Marlas and the petitioner is recorded as tenant. Both these are not relevant as the sale took place on 17-8- 1977. The third sheet starts from Kharif, 1977 and goes up to Rabi, 1981. The total area under the tenancy of the petitioner is 13 Kanals and 11 Marlas. The approach of the learned trial Court that this entry was recorded on 17-10-1977 and, thus, was not relevant is not sustainable. This entry pertained to Kharif, 1977 and according to Malik Pir Bakhsh and others v. Ali Muhammad 1992 SCM R 1031 Kharif commences from 1st May while the sale had taken place on 17-8-1977. There was nothing wrong about recording the entry relating to Kharif, 1977 on 17-10-1977 as according to para. l of the Chapter 9 of the Land Record Manual inspection of Kharif commences on 1st October and under Rule 13 of Chapter 9, the inspection has to be completed within one month.
7. Tshe entries of register Girdawari read with the admission of P.W.1 clearly establish that the petitioner was a tenant at least on an area measuring 13 Kanals and 11 Marlas on the date of sale.
Beyond that there is no evidence on the record as to the total area of the Khata comprised in the tenancy of the petitioner.
8.The question now is as to the extent to which the petitioner was entitled I to defend the sale in his favour. The total area of Khata in question is 173 Kanals and 17 Marlas. The area sold (2 Kanals, 8 Marlas) represented 48/3477th share of the khata. The petitioner is entitled to defend the sale of his favour to the extent of 48/3477th share of 13 Kanals and 11 Marlas which is comprised in his tenancy and this share comes to 3-3/4 Marlas on payment of proportionate price which comes to Rs.132.81. I am fortified by the rule laid down in Fateh Khan v. Abdul Rehman's 1983 SCM R 293, Noor Muhammad v. Member, Board A of Revenue and 3 others 1983 CLC 571 and Muhammad Ali v.
Muhammad Sharif 1989 SCM R 796.
9. In view of the above, this revision petition is allowed and the decree is modified and the suit of the deceased pre-emptor is decreed for an area measuring 2 Kanals and 4-1/2 Marlas (instead of 2 Kanals and 8 Marlas) for a consideration of Rs.1,568.19. The parties are left to bear their own costs.
The pre-emptor will be entitled to refund to Rs.132.81.