' This Regular Second Appeal has been filed by the appellants under section 100 of the Civil Procedure. Code, against the judgment and decree, dated 11-5-1978 passed by the learned Additional District Judge: Gujarat, whereby he accepted the appeal of the respondents, set aside the judgment and decree, dated 3-7-1974 passed by the learned trial Court and granted the decree of the entire suit property to him on payment of Rs,3,677.67 and also dismissed the cross- objections filed by the appellants.
2. The background of the case is that Fazal and Rehmat son of Ahmad Din Tarkhan were tenants of one Allah Ditta son of Haji Gujjar land measuring 37 Kanals, 5 Marlas for the last 25/30 years. Allah Ditta sold the said land by way of oral sale subject to mortgage for an ostensible sum of Rs,3,800.
The appellants instituted a suit for declaration titled as Fazal and another v. Allah Ditta (bearing No,441 of 1968) to the effect that the land in dispute had been purchased by them from Allah Ditta who also filed a written statement by way of confession of judgment as such the suit was decreed on 27-6-1968 by the learned Civil Judge Gujrat. Mutation of sale bearing No,849 was sanctioned on 4-4-1970. Thereafter, on 2-4-1971, the respondent/plaintiff filed a suit against the appellants/defendants titled as Muhammad Sharif v. Fazal and another being Civil Suit No,1103 of 1971 for possession through claim of pre-emption challenging the sale in favour of the appellants/ defendants on the basis of superior rights of pre-emption being collateral of vendor Allah Ditta as well as Khewatdar. The suit was contested by the appellants/ defendants on which the following issues were framed:----
(1) Whether the plaintiff has got a superior right of pre-emption? OPP.
(2) Whether the ostensible sale price has been paid in good ',faith? OPD
(3) If issue No,2 is not proved, then what is the market value of the suit land? OPP.
(4) Whether the suit is time-barred? OPD.
(5) Whether the suit is for partial preemption OPP.
(6) Whether the plaintiff is estopped by his own conduct from bringing this suit? OPD.
(7) Whether the suit has been incorrectly valued for the purpose of court-fee and jurisdiction. If so, what is its correct valuation. OPD?
(8) Whether the suit of the plaintiff is frivolous and if so, whether the defendant is entitled to special costs under section 35-A, C.P.C.? OPD
(9) Relief.
' On 3-7-1974, the suit was partly decreed in favour of the respondent/plaintiff to the extent of only 9 Kanals and 8 Marlas on payment of Rs,876.15 by the learned Civil Judge, Gujrat. Both the parties were aggrieved by the judgment and decree, dated 3-7-1974 passed by the learned Civil Judge.
Hence, the respondent/plaintiff filed an appeal while the appellants/defendants filed their cross- objections. The learned Additional District Judge, Gujrat vide his order, dated 11-5-1978 allowed the appeal and decreed the suit in the whole and dismissed the cross-objections of the appellants/defendants.
3. Being aggrieved by the decretal of the suit in toto and the dismissal of the cross-objections the appellants have now come up before this Court by way of Regular Second Appeal.
4. Arguments heard. Record perused.
5. The learned counsel for the appellants/defendants has raised three-fold contentions, firstly, that the learned Civil Judge was influenced by the possession and did not appreciate that the land beyond 9 Kanals and 8 Marlas was not saleable, secondly, that for counting the date of limitation the starting point should have been the date of decree i,e, 27-6-1968; and thirdly, that the learned Civil Judge has totally taken out the superior rights of the appellants ignoring Martial Law Regulation No,115 according to which the petitioner being tenant had the first right of pre-emption in respect of the land comprised in his, tenancy.
6. So far as the first contention is concerned the suit land as described in the plaat was in Khata No,247-249 in four measurements, viz:--- 18 Kanals, 16 Marlas 3 Kanals, 9 Marlas 14 Marlas 14 Kanals, 16 Marlas ' The respondent/plaintiff has relied upon Exhs.P.2., P.3 while appellants/defendants relied upon Exh.D.3 and Exh.D.4 Exh.P.2 is copy of Khasra Girdawari showing Kharif and Rabi Crops of 1971 and Exh.P.3 another copy of Khasra Girdawari showing crops in Kharif 1968, Rabi 1969 and Kharif 1969 and Rabi 1970. Exh.D.3 is a Khasra Girdawari for Rabi-Kharif 1968-69, Kharif-Rabi 196970, Kharif 1970 and Rabi 1971. Exh.D.4 is a copy of Register Haqdaran Zamin for the year 1967-68 in respect of Khata Nos.147, 148, 149 and 150. According to Exh.D.4 Khata No,147 had two Khatoonis i,e, Khatooni No,242 and Khatooni No,243. Allah Ditta is shown the owner of both the Khatoonis. In cultivation column Khatooni No,242 is shown in possession of the owner. In column No,5 it is shown that it comprises of two fields bearing Survey Nos.32/6/3 and 12/2/2. In column No,6 the area of kind of land of Khasra No,32/6/3 is shown 1 Kanal, 4 Marlas Ghayr Mumkan and against Khasra No,12/21/2 and 3 Kanals, 12 Marlas.
' Khatooni No,243 in column No,4 shows that the cultivator was Fazal son of Ahmad, Ghayr Murusi while column No,8 shows that the rent paid was Batai ba Hissa Nisfi had comprised 6 fields namely 7/31/1 measuring 4 Kanals, 24/18/2 measuring 4 Kanals, 19/1 measuring 4 Kanals, 46 Marlas and 17/3 measuring 1 Kanal, 4 Marlas. The total area of all these four fields was 18 Kanals, 16 Marlas, out of which 17 Kanals and 12 Marlas were shown as cultivator by flood while uncultivated being Ghayr Mumkan was 1 Kanal and 4 Marlas.
' Khata No,148 shows that it has two Khatoonis bearing Nos.244 and 245. Allah Ditta is shown in the column of ownership. This Khatooni had three fields, out of which one field bearing Khasra No,13/18/3 measuring 13 Marlas was Barani and was shown under cultivation of Bashir Ahmad son of Ghenhna Khan Ghayr Mursui and column of Lagan Warranty. It is mentioned that Batai was ba Hissa Barabar.
' The other two fields comprises Khata No,7/8/1 measuring 1 Kanal, 12 Marlas and Khasra No,7/4 measuring 1 Kanal, 4 Marlas. Both these fields were mentioned as cultivated by Salaab and in cultivating possession of Fazal Ahmad, Ghayr Murusi, and in red column it is mentioned that Batai was ba Hissa Barabar. The total area of these two fields was in occupation of Fazal Ahmad shown as 2 Kanals, 12 Marlas (13 Marlas were cultivated by Barani and 2 Kanals, 16 Marlas were cultivated by Salaabi). In Khatooni No,249 Fazal Ahmad is shown as non-occupancy (Ghayr Murusi) and throughout in column No,8 which relates to rent it is mentioned that Batai was ba Hissa Nisfi. In column No,10 relating to remarks, six mutations have been mentioned. Five of which are in black ink and one in red ink. Those in black ink are:--{{TABLE}}
(I) Mutation of Inheritance 667/1
(2) Abandonment of Shaamlat 788
(3) 787
(4) lshtrak (Consolidation) 789
(5) Mutation of Partition 790 ' The one in red ink is:--- {{TABLE}} ' Mutation of Sale by 849 (in red Allah Ditta son of Haji ink) Caste Gujjar Bure in favour of Fazal and Rehmat sons of Ahmad Din Caste Tarkhan resident of the same village since on 4-4-1970.
' Appellants were non-occupancy tenants in the suit land and that an amendment had been made in the Land Reforms Regulation, 1972 (Martial. Law Regulation No,115) which was enforced with effect from 19-5-1976 and the jurisdiction of the, Civil Courts was ousted in respect of pending cases with effect from Kharif, 1973 with retrospective effect. As an appeal is continuing of the suit at the relevant time the same should also have dismissed 'by the learned Lower Appellate Court in view of the said amendment.
' In the case of Haq Nawaz v. Taja Mehmud and others (1981 CLC 1696) while interpreting para. 25(3)(d) of the Martial Law Regulation' it was observed as under:--- "By inserting clause (el) in subparagraph (3) of paragraph 25 of the said Regulation, the Legislature had not only laid down a qualification, in addition to the qualifications enumerated in section 15 of the Punjab Pre-emption Act, 1913, hereinafter referred to as the said Act, for claiming a right of preemption but had also, declared that the qualification so added shall be superior to all the qualification finding mention in section 15 of the said Act. It is too well-known that if a person possesses one of the qualifications given in section 15 of the said Act and another person having another qualification appearing therein arc out to acquire or retain some land sold by a third person, on the score of their respective qualifications, the one whose qualification is superior to that of the other will succeed in getting/retaining the land regardless of the fact that the person with superior qualification is the preemptor or the vendee qua the sale by which the land is transferred. If this proposition holds good in respect of the qualifications mentioned in section 15 of the said Act, there appears to, be no good reason for adopting a different approach in regard to the qualification given in clause (d) .In sub-paragraph (3) of paragraph 25 of the said Regulation, which is superior .To all the qualifications listed in .Section 15 of the said Act. I am, therefore, of the considered view that just as a preemptor claiming one of the qualifications given in section 15 of the said Act cannot succeed against a vendee having another qualification mentioned therein, which is superior to the one asserted by the pre- emptor, a suit for pre-emption by a person having, any of the said qualifications must fail if it is in regard to a sale of land in favour of a person who cultivated it as a tenant at the time of its sale."
' On the other hand, learned counsel for the respondents submitted that the appellants were not tenants in the land in dispute and that the document Exh.D.2 mentions the w..Ords (Ghayr Murusi) which do not mean that they were tenant. He referred to the case of Mst. Bhag Bhari, etc. v. Mst.
Bhagan and another (PLD 1954 Lahore 356) where the words (Ghayr Murusi) were entered in the cultivation column and it was observed that by itself the entry (Ghayr Murusi) does not necessarily imply that the person so descended is a tenant. The Patwari uses these words for every person who is in possession without any right or title. The entries in the cultivation column are always to be read alongwith the entries in the rent column.
' I have given due consideration to the valuable arguments on both sides.
' As per admitted record on both sides Batai in this case is recorded as ba Hissa Nisfi, i,e, the rent which was paid by the cultivator to the owner was half of the total crop, thus, the appellants were tenants and were in possession of the land as tenants in Rabi 1971. The Khasra Girdawari for the period after Rabi 1971 has not been produced. Uwler Martial Law Regulation No,115 the rights could come to the appellants from Kharif 1972 and not from retrospective effect. The mutation in favour of the appellants was sanctioned on 4-4-1970. While, the suit was filed on 2-4-1971 and as such the suit was within one year. Still further it is on the record that the sale was not made by means of mutation or through any registered sale-deed, but it was a sale reflected through the Decree, dated 27-6-1968 passed by Mr. Muhammad Islam Bhatti, learned Administrative Civil Judge, Gujranwala, which fact is incorporated in column No,15, the column of remarks in the Mutations registered at No,849 on 24-6-1969 by Patwari Muhammad Yaqub. It was Supervised by Lal Khan Girdawar and I htimal on 20-3-1970 was sanctioned by the Revenue Officer on 4-4-1970. Here fore, section 30 of the Punjab Pre-emption Act and Article 10 of the Limitation Act were not applicable to his case.
In the case of Ali Nawaz v. Mst. Saira Bibi, etc. (1999 SCMR 1909) which is a judgment of a Full Bench of the Supreme Court of Pakistan wherein it was observed that limitation period for filing of suit against a sale reflected through a decree of the Court is not governed by provisions of section 30 of the Pre-emption Act, 1913 and Article 10 of the Limitation Act. In such cases, the residuary Article 120 shall apply and the period of limitation would be six years with effect from the date of accrual of cause of action.
The upshot of the whole discussion is that the contention of the respondent is borne out from the record. The concurrent findings are in favour of the respondents and that learned counsel for the appellants could not point out any misreading and non-reading of any evidence or any material irregularity which are essential under section 100, C.P.C. And that in this way the appeal is without merit and the same is dismissed.