1991 PLP 319 (CLC)

Ch. Muhammad Hussain for Petitioner (in R.O.R. No.1586 of 1981). Ghulam Hussain Malik for respondent No.1. (in R.O.R. No.1586 of 1981). Malik Allah Wasaya for Petitioner (in R.O.R. No.1330 of 1981). Date of hearing: 19th May, 1990. These two revision petitions have been directed against the .order of Additional Commissioner/(Rev.), Sargodha Division dated 22‑4‑1981, whereby he accepted the appeal of Mahmood respondent No.1 and decreed his pre emption suit to the extent of eight kanals for a consideration of Rs.4,800 and directed him to deposit the price of land, less the amount already paid within one month from the date of order failing which his suit would stand dismissed. As the facts of cases are identical and the parties are similar, therefore, these two revision petitions are disposed of by this single order.

2. Arguments of both the counsel for the parties were heard on 19‑5‑1990 and the cases were adjourned for orders. The learned counsel for Ghulam Qasim petitioner/respondent contended that Mst. Hajran vendor was owner of 1/4th share in Khasra No. 360 measuring 7 kanals 18 marlas and No.325 measuring 22 kanals 16 marlas and Mahmood respondent No.1 was tenant on 8 kanals out of these Khasra Nos. Mst. Hajran vendor sold an area of 8 kanals out of her joint Khata No. 341 measuring 32 kanals and one marla. Mahmood respondent way thus entitled to pre‑emption decree of only 2 kanals i.e. 1/4th share and the learned Assistant Commissioner,/Collector has rightly awarded the decree but the learned Additional Commissioner had wrongly amended the said decree by giving 8 kanals. lie relied upon 1983 S C M R 293 and 1989 S C M R 796 in support of his contentions..

3. The learned counsel for Dost Mohammad etc. petitioners/respondents argued that they filed a civil suit for possession by pre‑emption on the basis of relationship and being co‑sharers in the Khata which was decreed by the Civil Court in their favour and they were in possession of the disputed land in execution of the decree but Mahmood respondent No.1 never challenged the same and in view of the matter no decree in his favour could have been passed by the Revenue Court.

4. The learned counsel for Mahmood respondent No.1 pleaded that the respondent No.1 had prior right of pre‑emption on the basis of tenancy and thus the Civil Court was not competent to grant decree to Dost Mohammad etc petitioners/respondents on the basis of being co‑sharers. He further pleaded that the learned Additional Commissioner had rightly awarded the decree as the Khata was common and the vendor sold only those Khasra numbers on which the respondent No.1 was a tenant.

5. I have given careful consideration to the arguments put forth by the counsel for the parties and perused the record. According to the entries of Register Haqdaran Zamin for the years 1960‑64, Mst. Hajran vendor was owner of 1/4th share in Khata No.241 comprising Khasra numbers 302, 304, 1976/312, 325 and 360 mesuring 32 kanals one marla. She sold 1/4th share equal to 8 kanals out of this joint Khata vide Mutation No.2156 dated 23‑10‑1974, which means that she never sold specific Khasra numbers. Mahmood respondent No.1 was tenant A under her and in accordance with the judgment reported in 1989 S C M R 796, he was entitled to decree to the extent of only 1/4th of area under his tenancy. Accordingly the revision of Ghulam Qasim is allowed to the extent that the order and decree passed by the learned Additional Commissioner dated 22‑4‑1981 are, set aside and the order and decree passed by the Assistant', Commissioner /Collector, Bhakkar are restored with the direction that if the' decretal amount has not yet been deposited, the same shall be deposited within one month from the date of this order.

6. Dost Mohammad etc. rival pre‑emptors petitioners/respondents did not challenge the order and decree of the Assistant Commissioner/Collector before the Additional Commissioner and moreover, the decree in favour of Mahmood respondent No.1 was awarded having superior right on the basis of tenancy; therefore, they have no locus standi to agitate at this stage. Their revision petition is accordingly dismissed. AA./380/R Orders accordingly.