This Constitutional petition calls in question judgment, dated 14-10-1997 passed by the learned Member (Judicial), Board of Revenue Punjab, Lahore in a suit for pre-emption.
2. Land measuring 246 Kanals and 8 Marlas was sold by Hanifan alias Faiz, in favour of Ch. Muhammad Yaqub and others, respondents Nos.3 to 6 herein, through sale-deed, dated 8-4-1982.
Muhammad Hussain and Ghulam Bari (petitioner herein) filed.a suit to pre-empt the sale in Civil Court, which was decreed on 21-4-1985.
3. Respondent No.2 (Wazir Ahmad) also filed a suit before the Collector to pre- empt.Xhe sale on the ground of being tenant in a portion of the land, subject-matter of the sale. It was claimed that respondent No.2 was cultivating land measuring 47 Kanals and 12 Marlas as a tenant and had superior right to pre-empt the sale to the extent of land in his cultivation. The suit was resisted by the petitioners, who maintained that the respondent was not a tenant and that he was estopped to file the suit.
4. After issues and evidence, the Assistant Commissioner/Collector, Sub --Division Daska, District Sialkot, decreed the suit of respondent No.2 to the extent of land measuring 47 Kanals and 12 Marlas, subject to payment of Rs.1,54,546.
5. Petitioners filed an appeal before the Additional Commissioner (Revenue), Gujranwala, which was accepted and in consequence, the decree in favour of respondent No.2 was set aside and suit for pre-emption filed by him was dismissed.
6. Respondent No.2 assailed the judgment of the Additional Commissioner before the Board of Revenue in revision, which was accepted vide order, dated 14-10-1997 and resultantly, the decree for pre-emption in favour of respondent No.2 was restored.
7. In this Constitutional petition, the judgment, rendered in revision by the Member, Board of Revenue, has been put to challenge.
8. Learned counsel for the petitioners contended that respondent No.2 was not a tenant and as per entry in Jamabandi (Exh.P.2), he wa6 in occupation as Chakota Saal Tamam" and, therefore, he had no right to pre-empt. It was added that the entries in Jamabandi had to be given preference over the entries in Khasra Girdawari. Relying on Faqir Muhammad and another v. Muhammad Rafiq and others 1986 CLC 1028 and Muhammad Bakhsh v. Sardar Hussain and others 1986 SCM R 300, it was argued that the lessee/Patadar of Chakota Dar could not be deemed to be a tenant. It was further argued that the finding on the issue of estoppel, recorded by the Member, Board of Revenue was not sustainable, as respondent No.2 would be deemed to have waived his right being a witness to the agreement of sale.
9. In reply, it was argued that respondent No.2 was a tenant, the entries in column No.4 of Exh.P.2 would be given preference over the entries in column No.8 and that the entries in column No.4 of Jamabandi read with entries in Khasra Girdawari proved the status of respondent No.2 to be a cultivating tenant of the land. It was added that the land was never offered for sale to respondent No.2 nor any evidence led to prove waiver and that respondent No.2 was not a witness to the sale- deed, subject-matter of pre-emption, hence the plea of estoppel and untenable.
10. 1 have given due consideration to the respective submissions of parties and have also considered the material annexed with this petition.
11. The suit for pre-emption was filed by respondent No. 2 on the ground that he was a tenant is a portion of land. The learned Collector as well as learned Member, -Board of Revenue found that the petitioner was a tenant in land measuring 47 Kanals and 12 Marlas and had superior right to pre- empt the sale. Main objection of the respondent is that the petitioner was not a tenant and was in possession as Chakota Sale-Tamam. In support of this contention, petitioner relies on entries at column No.8 of Register Haqdaran, produced in evidence as Exh.P.2. It is true that if the status of respondent No.2 would be that of Chakota Sale-Tamam, he might not be able to pre-empt the sale but if he was a tenant, then obviously he would have a superior right to pre-empt the sale.
12. To prove his status as a tenant, respondent No.2 produced oral evidence, comprising of the statement of P.W.1 Muhammad Mohsin, P.W.2 Mansab Dar, P.W.3 Muhammad Yaqoob and he himself appeared as P.W.4. The oral evidence is to the effect that respondent No.2 was cultivating the land as tenant. This evidence is supported by the entries in Khasra Girdawari, produced in evidence as Exh.P.3. In the Khasra Girdawari, respondent No.2 has been entered as tenant in respect of the portion of land, for which the suit was decreed. These entries are also supported by the entries in column No.4 of Register Haqdaran Exh.P.2. The entries in Column No.4 are to the following effect:-- .
Column No.4 of Register Haqdaran, pertains to the name of tenant with other particulars. The argument raised by learned counsel for the petitioners, is based on the entries in Column No.8 of Exh.P.2, which is to the following effect:-- The question for consideration is as to whether the entries in column No.4 have to be given preference over the entries in column No.8 or the position is vice versa. The settled rule is that the entries in column No.4, which pertain to A cultivation, have to be given preference over the entries in column No.8. In this regard, reference can be made to Mehrab Shah v. Shah Zaman and others 1985 SCM R 497, where it was ruled by the Honourale Supreme Court of Pakistan as under: "In this state of evidence, it is not surprising that the learned Civil Judge, Peshawar, who finally heard the suit, allowed it by his judgment, dated 27-10-1969. In decreeing the suit, the learned Judge observed-- 'The defendant primarily placed his reliance on the entries of column of Lagan. It is well-settled now that the entries of the column of Lagan, otherwise not corroborated by any evidence cannot take precedence over the entries of the column of cultivation'.
We would paus to state here that these observations state the correct law, therefore, the learned Judge rejected the oral evidence produced by" Mehrab Shah and accepted evidence of the Revenue Records produced by Sharbat Khan, which clearly showed that the respondents were shown as owners in the column of cultivation in the Revenue Record. ..
As in the Courts below, Mr. Naqshband relied on the fact that the case of the appellants was supported by the entries in the column of Lagan. But as we indicated earlier, we agree with the view taken by the trial Court that the entries in the column of cultivation take precedence over the entries in the column of Lagan end, therefore, the burden was on Mehrab Shah to produce evidence in support of his defence. "
13. In this case, not only the entries in column No.4 of Jamabandi support respondent No.2 in proving that he was a tenant but also the entries in Khasra Girdawari corroborate the same.
Respondent No.2 also produced oral evidence, in support of the entries in Revenue Record and the review of the entries in Revenue Record, alongwith oral evidence lead to the conclusion that the status of respondent No.2 was that of a tenant, who had first and superior right to pre--empt the sale to the extent of land measuring 47 Kanals and 12 Marlas. The learned Member, Board of Revenue as well as the learned Collector took not of the oral and documentary evidence on record and concluded that respondent No. 2 was a tenant, which findings do not suffer from any misreading or non---reading of the evidence or from any error of law.
14. As regard the plea of estoppel, the same is devoid of any merit. Main stay of the petitioners is on agreement of sale and on the basis thereof, it is pleaded that respondent No.2 having allegedly signed the agreement as a marginal witness, had waived his right of pre-emption. It cannot be ignored that the sale was effected through registered sale-deed and in the sale-deed, respondent No.2 was not a witness. In his evidence, respondent No.2 explained that he was never offered the land for sale and that he was per chance available at Sialkot, where vendor and the vendee met him and asked him to sign the agreement as attesting witness, without explaining the contents thereof and that he signed as a witness, without knowing the nature of the transaction. It is in the evidence that being a Councillor, his signature was obtained as a witness. For making out a case of estoppel and waiver, one has to prove that the vendor had offered the land for sale to the pre- emptor, on a definite price, and the pre--emptor refused to purchase it. Unless and until, there is a definite price, intentions of sale, the offer to purchase, the definite refusal to purchase, the question of estoppel of waiver would not arise. Mere presence of the alleged pre-emptor, without asking him to purchase the land on a definite price and >n the absence of his expressed refusal, the plea of estoppel of waiver cannot be possibly raised. In the present case, the learned Collector as well as the learned Member, Board of Revenue concurrently found that the land was not offered for sale and that the pre-emptor had never expressed his lack of interest in the purchase. Concurrent findings on issue of estoppel have been recorded by the two forums against the petitioners, which cannot be possibly challenged in the Constitutional jurisdiction.
15. For the reasons above, there is no merit in this writ petition, which is accordingly dismissed.