The appellant purchased land measuring 42 Kanals, 15 Marlas comprising Khasra No,480 located in the revenue estate of Fatehullah, Tehsil Attock vide registered sale-deed dated 28-12-1978. On 2-1- 1980 the respondent (now deceased represented by his L.Rs,) filed a suit for possession of the said land by pre-emption. He claimed that the land has been sold for Rs,25,000 but a sum of Rs,50,000 has been got falsely recorded in the registered documents as consideration. He claimed to be a co-sharer in the suit land as also an owner in the estate. The suit was resisted by the appellant who insisted that he has paid Rs,50,000 as the price of the land. He denied the said right of pre-emption of the respondent on the plea that his father was a non-occupancy tenant and after death of his father he is himself cultivating the land and that his father had died 10 years ago. Issues were framed, relevant being issue No,3 which is reproduced here:-
(3) Whether the plaintiff has superior right of pre-emption over the suit land? OPP Evidence of the parties was recorded. Vide judgment and decree dated 20-12-1980 the learned trial Court found that the father of the respondent had been a tenant and that since the respondent is the son of the said recorded tenant, after his death he became the tenant. The suit was accordingly dismissed. The plea taken by the respondent that the right extends only to half the suit land was rejected. The suit was accordingly dismissed. A first appeal filed by the respondent was heard by a learned Additional District Judge, Attock who proceeded to allow the appeal and to decree the suit of the respondent subject to deposit of Rs,50,000. This was done vide judgment and decree dated 15-6-1981. Against this judgment and decree present R.S.A. was filed which came up for hearing before this Court on 24-11-2000 and was dismissed. The appellant filed C.P. No,454 of 2001 against the said judgment and decree of this Court which was heard on 13-7-2001, converted into C.A. No,1546 of 2001 and allowed. The case has been remanded back to this Court for decision afresh.
2. Mr. Abdul Karim Khan Kundi, learned counsel for The appellant contends that the learned Additional District Judge has completely misdirected himself in proceeding on the premises that the appellant who was a vendee, was also required to prove his right of pre-emption at three crucial dates as is the case with the pre-emptor.. According to the learned counsel the proposition is otherwise and if a vendee is able to show his right superior to that of the pre-emptor at any time before the institution of the suit by the preemptor, the latter would be non-suited. With reference to evidence on record contends that it stands proved that the appellant and his brother were the tenants after the death of their late father and were cultivating the land as such at the time the sale took place in favour of the appellant. According to the learned counsel the entire suit is liable to be dismissed because of the established facts on record that on the date of sale the respondent was not possessed of right superior to that of the appellant. Mr. Zaheer Bashir Ansari, Advocate for the respondent, on the other hand, has tried to argue that under section 60-A of the Punjab Tenancy Act, 1887 only the eldest son or a preferred heir becomes a tenant and otherwise the land goes to the landlord as tenancy stands extinguished. Further contends that the entire suit would not be liable to be dismissed as said right of the appellant extends only to half of the suit land.
3. Before proceeding further in the matter I may note here that the case was remanded by the Honourable Supreme Court on 13-7-2001 and thereafter the case was listed on 23-10-2001. Parties are fully aware of the contents of the judgment of the Supreme Court . However, none of them has taken any steps or expressed any desire to lead any evidence other than already on record or to make any amendment in the respective pleadings.
4. I have gone through the records with the assistance of the learned counsel for the parties. So far as the pleadings of the parties are concerned, the appellant has specifically taken the plea that the land was comprised in his tenancy at the time of sale. Channan Din the deceased plaintiff/respondent appeared as P.W.1 on 14-12-1980. In his examination-in-chief he did not state a word about the said contention of the appellant. He simply said that the appellant is not an owner in the estate. However, in his cross-examination he denied the suggestion that the appellant was a tenant at the time of sale or that he had been cultivating the land as a tenant. This is the entire evidence of the respondent on the subject. The appellant, on the other hand, produced Dildar as. D.W. I . He categorically stated in his examination-in-chief that father of the appellant died 10/12 years ago and that the appellant and his brother Ghulam Sarwar cultivated the land. It is amazing that the suggestion given to this witness in cross-, examination is and he admitted that the appellant is not an owner in the estate. Muhammad Iqbal, the brother and attorney of the appellant appeared as D.W.2. He categorically stated that at the time of sale he and his brother Ghulam Sarwar were cultivating, the land as tenants and prior to that their father used to cultivate.
Again the suggestion given to this witness is not that the appellant or the witness were not tenants but the suggestion is, and the witness admits, that the appellant is not an owner in the estate. A bare reading of the statement of this witness would show that the facts stated by him that the land was comprised in the tenancy of the two brothers at the time of sale has not at all been questioned and it shall be deemed that the said facts have been admitted.
5. Coming to the documents as per copy of Register Haqdaran Zamin (Misl-e-Haqiat) (Exh.P.2) the suit land is being cultivated by Akbar son of Karam Din as non-occupancy tenant subject to payment of half share in produce. Similar are the entries in the Khasra Girdawari (Exh.P.3) from Kharif, 1977 to Kharif, 1979. Exh.D.2 is the same Khasra Girdawari as is Exh.P.3. However, in Exh.D.1 there . is a note of correction made on 2-10-1980 that death of Akbar tenant has been verified and that his sons Muhammad Iqbal and Ghulam Sarwar have been cultivating the land as non-occupancy tenants on payment of half share of produce. Exh.D.3 is the death entry showing the death of Akbar, admittedly father of appellant, on 9-11-1969. Thus the cumulative effect of the said evidence on record is that Akbar, the father of .appellant was non-occupancy tenant in the entire suit land and after his death both his sons i,e, appellant and the said Iqbal had been cultivating` the land as tenants on payment of half share of produce. So far as the said first contention of the learned counsel for the respondent is concerned, as noted by me above, no effort has been made to amend the pleadings or to lead further evidence by any of the parties. There is no foundation laid for the said argument being raised now upon a rehearing of the second appeal on remand. On the other hand, the statement made by the attorney of the appellant in the witness box as P.W.2 is that both the brothers were non-occupancy tenants in the suit land at the time of sale has been accepted. Nothing, therefore, turns on the said first contention of the earned counsel for the respondent.
6. However, learned counsel for the respondent is on a stronger footing with his second contention.
Mr. Abdul Karim Khan Kundi, Advocate insists that on the principle of joint ownership or holding i,e, that each joint owner is owner of each and every inch of land till partition takes place, the right of the appellant shall extend to the entire tenancy notwithstanding the fact that he is tenant to the extent of one half share.
7. I am afraid in view of the specific terms in which the right has been conferred upon a tenant under para. 25(3)(d), it is not at all possible to extend the right beyond its legal parameters. Now the terms of para.25(3)(d) of Martial Law Regulation No,115 are that " a tenant shall have the first right of pre-emption in respect of the land comprised in his tenancy." A bare reading of the said provision would not leave any ambiguity that the intention was to restrict the right to the land comprised in the tenancy. To my mind in view of the evidence on record the two brothers are joint tenants and in the absence of any plea to the contrary it will have to be deemed that they are tenants in equal shares. This being so, the two brothers would be joint tenants in the entire land but it cannot be said that the entire land is comprised in their tenancy. It will only be the half share of the land which shall be comprising in the tenancy of the appellant and nothing more.
8. In view of the above discussion this R.S.A. is partly allowed. The judgments and decrees passed by both the learned Courts below are set aside and instead the suit of the respondent is decreed to the extent of 1/2 of the suit land measuring 42 Kanals 15, Marlas on payment of Rs,25,000. The suit with regard to the remaining half of the suit land shall stand dismissed. In case the respondent has not already made deposit, he shall make the said deposit of Rs,25,000 till 15-12-2001 in the trial Court and in case he fails to make the said deposit his suit shall stand dismissed in its entirety with costs. At the moment the parties are left to bear their own costs.