Through the filing of this revision petition, the petition/defendant has called in question the judgment and decree dated 23-11-1991 whereby the learned Additional District Judge, Jhang, dismissed the appeal, filed by the petitioner, and modified the judgment and decree dated 30-1- 1984 passed by the learned Civil Judge, Jhang, through which he partially decreed the suit for possession through preemption, filed by the respondent.
2. Relevant facts which are necessary for the decision of the present revision petition are. that Rashid Ahmad the petitioner, purchased land measuring 16 Kanals and 13 Marlas, situate in Mauza Kot Khera, Tehsil and District Jhang (hereinafter called as disputed land) through Mutation No,1410 attested on 21-2-1979, for a consideration of Rs, 30,000. The respondent, a minor son and nephew of two vendors namely, Khan and Ghulam, respectively, filed a suit for possession through pre- emption on the ground of being reversioner of the vendors alleging therein that as a matter of fact the land was sold for a sum of Rs, 20,000 but in order to defeat the right of pre-emption, the same has ostensibly been shown as Rs, 30,000. The suit was resisted by the petitioner being the defendant, by way of filing the written statement inter alia asserting that the sale-price is in fact Rs, 30,000. He has made improvements for Rs,13,250 and while refuting the alleged superior right of preemption of the respondent submitted that the petitioner was tenant at will in the suit and at the time of the sale, thus, having as superior right of pre-emption. The learned Civil Judge framed the necessary issues, recorded the evidence of the parties and proceeded to partially decree the suit in favour of the respondent vide judgment and decree dated 30-1-1984. Both the parties felt aggrieved, thus, 'they filed separate appeals challenging the decision of the learned Civil Judge, and the learned Appellate Court vide judgment and decree dated 14-5-1985 accepted the appeal of the respondent and decreed the suit in its totality in favour of the respondent on the payment of Rs, 30,000, while the appeal filed by the petitioner was dismissed. The said appellate decree was challenged through filing a revision petition by the petitioner before this Court and while setting aside the appellate judgment and decree, this Court remanded the case to the learned First Appellate Court with the direction to rehear the appeals and to decide them afresh. In the post- remand proceedings, the learned Additional District judge accepted the appeal, filed by the respondent and decree the suit in his favour on payment of Rs, 30,000, while the appeal filed by the petitioner was dismissed vide a consolidated judgment and decree dated 23-11-1991, hence, the present revision petition.
3. Learned counsel who was representing Khan respondent, on 9-10-2001, submitted that the sole respondent has died and he has no contact with his legal heirs, thus, he showed his inability to file an application for bringing on record the legal heirs of the deceased. The petitioner has also shown his ignorance about the legal heirs of the deceased/ respondent. As no application has been made within the stipulated period, thus, I am constrained to proceed with this revision petition in view of the provisions of Order XXIL rule 4(3) of the Code of Civil Procedure, which provides that if no application is made within the stipulated period for bringing on record the legal heirs, any order made or judgment pronounced in such suit shall have the force and effect as if it had been pronounced before the death took place.
4. The learned counsel for the petitioner, while relying upon the admitting note recorded by this Court on 7-12-1991 has submitted that Exh. D.3 amply shows that the petitioner was already a tenant in respect of the land in dispute, irrespective of the fact that they have purchased the land in question subsequently and that purchase would not in any way affect the status of the petitioner as a tenant as the relevant time.
5. I have perused Khasra Girdawari Exh. D.3 which shows that the petitioner is in occupation of the land in dispute as a tenant. Admittedly, entries in Khasra Girdawaries, with regard to possession, carry presumption of correctness and the learned Additional District Judge has erroneously held otherwise. It has been proved on record that the petitioner had superior right to claim pre-emption at the time of sale, at the time of suit and at the time of the decree. The learned counsel for the petitioner has rightly relied upon D Muhammad Hassan and others v. Mithu (1993 M LD 683) and Muhammad Khan and others v. Muzaffar (PLD 1983 SC 181). It has been held that the pre-emptor, to succeed, should have superior right at the time of sale, at the time of suit at the time of decree. The petitioner has claimed that he has superior right qua the respondent being already tenant. Khasra Girdawari referred to above, is ample proof of the fact that the petitioner was in occupation of the land in question since Rabi, 1978.
6. Applying the yardstick given in the aforenoted cases and placing the law declared in juxta- position to the facts of the present case, it is abundantly clear that the petitioner has a superior rights of preemption on the basis of the tenancy and, thus, both the Courts proceeded on erroneous assumption while rendering both the judgments, thus, the said judgments definitely calls for interference by this Court in exercise of its revisional jurisdiction.
7. The upshot of the above discussion is that the present revision petition stands accepted and both the judgments and decrees dated 30-1-1984 and 23-11-1991 passed by the learned Civil Judge and the learned Additional District Judge are hereby set aside with no order as to costs. The result would be that the suit filed by the respondent shall stand dismissed. 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.