' Before touching the merit of this appeal, learned counsel for the respondents raised a preliminary objection that the instant appeal is barred by time by two days. According to him, the relevant date on which the impugned judgment and decree was passed is 5-6-1978. The appellants applied for the copy of the same on the said date. The copy of the judgment and decree was prepared and delivered on 13-6-1978 and the present appeal was filed on 13-9-1978. In this view of the matter, the appeal was barred by time by two days. This factual aspect if calculated in such manner is not disputed by the learned counsel for the appellants.
2. However, the learned counsel for the appellants contends that under Order 42, rule'2, C.P.C. The appellants are obliged to file a certified copy of the judgment and decree of the trial Court as well along with memorandum of second appeal and according to him the "time requisite" for obtaining the certified copies of the judgment and decree of the trial Court shall also be covered under section 12(2) of the Limitation Act. It is submitted by him that the appellants had applied for the certified copy of the judgment and decree of the trial Court on 10-6-1978, which was delivered on 1- 7-1978. It is contention of the learned counsel that initially the limitation would stop running on 5-6- 1978 when he filed application for copy of the judgment and decree of the learned Appellate Court it would start running from 13-6-1978 when the copies were delivered but since in the mean whilon 10-6-1978 he had also filed an application for the copies of the judgment and decree of the trial Court, which was ultimately delivered on 1-7-1978, therefore, the time would not run from 13-6-1978.
It would remain suspended till the date of delivery of copies of judgment and decree of the trial Court on 1-7-1978. In this view of the matter, the contention goes that the appeal is within the period of limitation. He has relied on Amir Hussain Shah v. Umra (1986 SCMR 880), Sh. Muhammad Sharif v. Sh. Akbar Hussain (PLD 1990 Lah. 229), Kala v. Allah Dad (PLD 1977 Lahore 376), Abdul Ghafoor v. Slier Ahmad (PLD 1961 Lahore 366 (DB)).
3. On the other hand, learned counsel for the respondents while controverting the arguments of the learned counsel for the appellants states that in the instant case section 12(2) of the Limitation Act is not applicable and the appellants should have filed an application under section 5 of the Limitation Act and should also have explained the delay of those two days. Since no such application has been filed, therefore, the Court cannot condone the delay of said two days. In this respect he relics on Mst. Jamila Khatoon and another v. Mst Tajunnisa and others (PLD 1984 SC 208) and Amir Hussain Shah and others v. Umra and 11 others (1986 SCMR .800).
4. 1 have considered the arguments of the , learned counsel for the parties and the record.
5. Under Order 42, rule 2, C.P.C., it is mandatory requirement for filing a second appeal that the judgment and decree of the trial Court shall also, be appended with the memo. Of, second appeal, therefore, to my mind the time requisite" as mentioned in section 12(2) of the Limitation Act would also cover the time spent by the appellants for obtaining the certified copies of the trial Court's judgment and decree. In the instant case, the first application was filed for obtaining the copies of the judgment and decree of the lower Appellate Court on 5-6-1978 and before its delivery to the appellants another application was filed by him for obtaining the certified copies of the trial Court's judgment and decree on 10-6-1978, therefore, the delivery of copies of the lower Appellate Court's judgment and decree on 13-6-1978 would not start the running of the limitation as the same had already been stopped through an application dated 10-6-1978. In this view of the matter, limitation would re-start running on 1-7-1978, when the copies of the trial Court's judgment and decree were delivered to the appellants. The reference made by the learned counsel for the appellants to the law declared in Abdul Ghafoor and another v. Sher Ahmad and others (PLD 1961 (W.P.) Lahore 366) is fully applicable to the facts of the case. However, the contention of the learned counsel for the respondents that since section 12(2) of the Limitation Act is a vested right to the litigant to exclude the time requisite from the time of limitation but on the other hand the provisions of section 5 of the Limitation Act are discretionary, there is no dispute to the said proposition but since in the instant case, the appellants were obliged under the provisions of C.P.C., to file the judgment and decree of the learned trial Court, therefore, the time requisite for obtaining the copies of those documents would also fall within the definition of "time requisite" as envisaged in section 12(2) of the Limitation Act, therefore, in such circumstances question of application under section 5 of the Limitation Act does not arise and the appellants were under no obligation to file application under' section 5 of the Limitation Act.
6. For what has been stated above, the preliminary objection raised by the learned counsel for the respondents is answered in negative.
7. Brief facts leading to the present appeal are that the respondents purchased 159 Kanals and 13 Marlas land through registered sale-deed, dated 5-3-1975 for ostensible sale price of Rs,60,000 from one Mukhtar Ahmed. The appellants filed a suit against the respondents on the ground that they are sons of vendor Mukhtar Ahmed. The suit was contested by the respondents and after recording of evidence the learned trial Court vide its judgment and decree dated 24-1-1978 decreed the suit of the appellants. This was challenged by the respondents through an appeal which was allowed by the learned District Judge vide its judgment and decree dated 5-6-1978. This is being assailed through the present appeal.
8. It is submitted by the learned counsel for the parties that all other issues except Issue No,4 which relates to the superior right of pre-emption, have already been settled Issue No,4 is as follows:-- "Whether the plaintiffs have a superior right of pre-emption? OPD."
9. The learned lower Appellate Court had decided the case on the ground that since "lessee" and "tenant" have equal right of preemption, therefore, the respondents being lessees had superior right as against the appellants, therefore, the suit was dismissed by the lower Appellate Court.
10. Learned counsel for the appellants while relying on Habib Roz Gujar v. Atta-ulHaq (1990 MLD 80), (Javed Akhtar v. Mst. Neelofer (1992 CLC 1382), Faqir Muhammad and others v. Muhammad Rafiq and others (1986 CLC 1028) and Bakhtawar Shah and others v. Member, Board of Revenue and others (1985 SCMR 348) contends that it is settled law that lessee cannot be equated with a tenant confer right of pre-emption in his favour and according to him P.W.1 who is the vendor had stated that the respondents were cultivating the land as lessee before the sale. It is further stated that in Exh.D.1 following expression:-- {{URDU TEXT}} does not show that the respondents were tenants of the suit land prior to the sale. It is further submitted that although the name of Lal Khan is mentioned in the said Khasra G,ir.,,Nrart but the second vendee namely Muhammad Bakhsh does not find any place in the Revenue Record even as lessee or tenants, therefore, the case is hit on the principle of sinker on this ground.
11. On the other hand, learned Counsel for the respondents-vendees contends that P.W.1 in one breath states that the land in dispute was being cultivated by the tenant and in the second breath he has denied his stance to that, the land was being cultivated by the respondents as lessees.
Since he is father of the appellants, therefore, it cannot be expected that he would have supported the respondents. Learned counsel for the respondents also while referring statements of D.Ws.1 and 2 contends hat said D.Ws. Have stated in their examination-in-chief that the land was being cultivated by them as tenants prior to the sale. According to him there is no rebuttal from the appellants' side to the afore-referred evidence of the respondents.
12. I have considered the arguments of the learned counsel for the parties and perused the record.
13. Now there is no cavil to the proposition that a lessee cannot be equated with a tenant to clothe him with the rights of pre-emption under para. 25 of the M.L.R.
115. The law referred by the learned counsel for the appellants confirms this proposition that the tenant has a right of pre-emption but lessee is not entitled to claim any right of preemption.
14. So the findings of the learned Appellate Court to this extent that since the respondents were lessees and had an equal right to that of the tenants is not in consonance with law. However, to resolve the real question in controversy between the parties, whether the respondents were tenants or lessees over the suit land prior to the sale. The careful examination of the evidence adduced by the parties shows that admittedly the previous land owner P.W.1 vendor had stated and admitted the respondents as his lessees and the respondent on the other hand had placed on record Exh.D.1, which is Khasra Girdawari which does not show that both vendees were tenants over the suit land prior to this sale. On the contrary, it shows that one of the respondents namely Lal Khan was sharing the lease of the land with one Muhammad Murad and it shows that none of the respondents were possessing the land as tenants prior to the sale.
15. In view of what has been stated above, I allow this appeal and set aside the judgment, and decree of the lower Appellate Court with no order as to costs. The judgment and decree of the learned trial Court are upheld. However, the appalling shall deposit the decretal amount as directed by the learned trial Court within a period of two months from today, failing which their suit shall, stand dismissed with 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.