2004 PLP 919 (SCMR)

Khan A. Hameed, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Respondents. Date of hearing: 1st July, 2002. RANA BHAGWANDAS, J.‑‑‑Petitioner seeks leave to appeal against the judgment dated 23‑11‑2000 of the Lahore High Court, Lahore, accepting Regular Second Appeal No.249 of 1981 filed by the respondent No.1 and setting aside the determination of status of the petitioner in relation to a suit for pre‑emption.

2. Petitioner as well as respondent No.1 are rival pre‑emptors. They pre‑empted the sale effected through registered sale‑deed dated 4‑6‑1973 in favour of the vendees. Claim of the petitioner for asserting his right of pre‑emption was on the basis of being tenant of the suit‑land as also co‑owner in the estate while respondent No.1 claimed to be owner in the estate and co‑sharers in the Khata. Both the suits were consolidated and after evidence, learned Civil Judge decreed the suit in favour of petitioner taking the view that he had been able to establish his status as tenant at the time of sale. Accordingly, the Civil Judge directed that in case the petitioner failed to deposit the pre‑emption money, second decree stood granted in favour of respondent No. 1 to the extent of 35 Kanals, 3 Marlas and in favour of the petitioner to the extent of 4 Kanals, 13 Marlas. Respondents filed an appeal against the said judgment and decree but without any success. In regular second appeal a learned Judge in Chambers accepted the respondents' plea and rejected the plea advanced by the petitioner that in addition to being co‑owner in the estate, he was the tenant of the land in dispute.

3. In order to comprehend the real controversy between the parties following portion from paragraphs 2 and 3 of the impugned judgment may be reproduced for the sake of convenience and reference:‑‑ "In order to prove, that the respondent No. 1 was not the tenant of the suit property, at the relevant time, the appellant has placed on record Exh. P.1, which is a Patta Nama executed by respondent No. 1 in favour of the vendor of the property; as also Exh.P.2 and Exh.P.4, the relevant Khasra Girdawaris, which show that the respondent No. 1 was 'Patta Garinda', rather than a tenant at the time, the sale was made. Respondent No.1, had also placed on record Khasra Girdwari for the period commencing Kharif 1972 to Rabi 1974. As per this document, respondent No. 1 is not shown to be a tenant of the suit property rather, a Pattadar. (3) Anyhow, the most important document in this case, is Exh.P.1, that is a Patta Nama, executed by respondent No.1, which covers the period from Kharif 1972 to Rabi 1974. This Patta Nama was executed on 19‑1‑1973, which means that at the time of sale he was not a tenant rather, a lessee under the owner."

4. Learned counsel for the petitioner has vehemently contended that the petitioner was a recorded tenant of the suit‑land at the time of sale in 1973 but this contention is untenable for it is totally belied by the recital in Pattanama Exh.P.1 dated 19‑1‑1973 as well as entries in the Khasra Girdwaries Exh.P.2 and P.4 for the relevant period tend to show that the petitioner's status was that of a Pattadar and not as tenant though wrongly agitated. Learned counsel has been unable to controvert the documentary evidence which was rightly accepted by the High Court for reversing the findings of fact recorded by the two Courts below erroneously. Learned counsel attempted to refer to an amendment brought in 1982 in Martial Law Regulation 115 which is hardly relevant in the circumstances of the case as the crucial point for determining the status of the petitioner would be relatable to 1973 when the right to sue accrued to him. Since the petitioner has been found to be a Pattadar i.e. a lessee throughout, he cannot be permitted to say that he being a tenant had a preferential right of pre‑emption over the suit‑land.

5. In our view, the impugned judgment does not suffer from any factual or legal infirmity in that there has been no misreading or non reading of the record. Indeed the impugned judgment is based on correct, careful and elaborate appreciation of the legal and admissible evidence on record which does not warrant any interference in the exercise of discretion by this Court.

6. Resultantly, the petition fails and is hereby dismissed. M.H./G‑143/S. Petition dismissed.