1987 PLP 194 (SCMR)

‑‑‑Art. 185(3)‑‑Punjab Pre‑emption Act (I of 1913), Ss. 15 & 16‑ Pre‑emption suit‑‑Leave to appeal granted to consider contention of petitioner that High Court and Additional District Judge had ignored material evidence in holding that all petitioners were not tenants in land in dispute on the day of impugned sale. Sh. Hamid Mukhtar, Advocate Supreme Court instructed by Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioners. Nemo for Respondent. Date of hearing: 7th December, 1986. SAAD SAOOD JAN, J.‑‑This petition for special leave to appeal arises out of a pre‑emption suit which was filed by the respondent in respect of a sale of agricultural land made by his father in favour of the petitioners. The petitioner's defence to the suit was that on the day of the sale they were tenants in the land in dispute and as such the respondent did not possess a superior right with reference to them. The trial Court accepted the plea of the petitioners and dismissed the suit. The respondent preferred an appeal before the learned Additional District Judge. After re‑appraising the evidence the learned Additional District Judge came to the conclusion that the petitioners were not tenants in the land at the time of the sale and since the respondent was admittedly the son of the vendor he had a preferential right to acquire the land. Accordingly, he decreed the suit of the respondent. The petitioners challenged the decision of the learned Additional District Judge in second appeal in the High Court. The High Court found that one of the petitioners, namely, Shan Muhammad, was not recorded as tenant in the revenue record; as the other petitioners had joined him in the sale which was indivisible they, too, could not defend the suit on the plea of being tenants. Accordingly, it dismissed the appeal.

2. In support of this petition for special leave to appeal learned counsel for the petitioners contends that the High Court and the Additional District Judge have ignored material evidence when they held that all the petitioners were not tenants in the land in dispute on the day of the impugned sale. He has referred us to the Khasra Girdawari where in the relevant column the following entry exists, 'Muhammad Abbas son of Muhammad Inayat etc'. The word "etc." itself indicates that the land in dispute was being cultivated by more than one person. To explain to whom the word "etc." referred the petitioners examined the local Lambardar (D.W.2) and Waryad (D.W.1). They both stated that the land in dispute was being cultivated by all the petitioners including Shan Muhammad. Neither the local Lambardar (D.W.2) nor Waryad (D.W.1) was seriously cross‑examined on his statement in this regard. That being the position the learned counsel contends that the High Court and the Additional District Judge erred in holding that Shan Muhammad had not been proved to be a tenant in the land in dispute at the relevant time.

3. The contention raised by the learned counsel for the petitioners requires consideration. Accordingly, we would grant ''Leave to appeal to the petitioners. The appeal may be made ready on the present record with permission to the parties to add such documents as they may consider necessary. Security in the sum of Rs.1,000 should also be deposited for costs. S.Q Leave granted.