2001 PLP 1203 (CLC)

(4) Whether the plaintiffs have superior right of pre‑emption? (5) Whether the ostensible sale price of Rs.25,000 was fixed in good faith or actually paid? OPD. (6) If issue No.5 is not proved, what was the market value of the suit land at the time of its sale? O.P. Parties. (7) Relief.

3. Both the parties produced their respective evidence and the learned Civil Judge 1st Class, Multan decided Issues Nos.1 to 3 against the petitioner, under issues Nos.5 and 6 the sale price was fixed to be Rs.25,000 (as conceded by the learned counsel for the plaintiff‑respondents vide his statement, dated 20‑7‑1983), under issue No.4 (superior right) it was held that the petitioner was tenant of the suit‑land to the extent of 8 Kanals, therefore, suit of the plaintiff to this extent was dismissed while for the remaining 32 Kanals it was held that the plaintiffs/respondents were owners of the estate (Khewatdar Mauza), their suit to this extent (of 32 Kanals) was decreed on payment of proportionate price of Rs.20,000 and that the petitioner preferred an appeal against the decree and judgment of the learned trial Court which was also dismissed. Feeling aggrieved by the orders of the learned Additional District Judge, the petitioner has come up in revision to this Court.

4. It was contended by the learned counsel for the petitioner that Khasra Girdawari Exh.D.1 on the basis of which exemption of 8 Kanals land has been awarded to the petitioner has been misread He has submitted that it has been taken as if the petitioner was tenant of 8 Kanals in the said Khewat and that he was tenant of '65 Kanals, 16 Marlas at the time of sale and that the land was sold to the petitioner being 40 Kanals was much less than the land under the tenancy and that the petitioner on the basis of his tenancy was entitled to the exemption of whole land of. 40 Kanals purchased by him. 1!t was also submitted by the learned counsel for the petitioner that if it was taken that petitioner, on the basis of tenancy, was not entitled to exemption of whole land of 40 Kanals purchased by him but was entitled to proportionate share which land under his tenancy had with the total land of the Khewat even them the land under his tenancy is 165 Kanals and 16 Marlas (or 3316 Marlas) while the total land of disputed Khewai No.46 is 200 Kanals (or 4000 Marlas). Thus, proportion of land under tenancy of the petitioner with the total land comes to 3316: 4000. Applying the formula of proportionate share to the land purchased by the petitioner (measuring 40 Kanals) the exemption comes to 33 Kanals and 3 Marlas (40 Kanals x 3316/4000‑ 33, Kanals, 3 Marlas) and not 8 Kanals as calculated by the Courts below and that once it is held that petitioner was entitled to exemption of some portion of land (purchased by him) then to the extent (of exempted land) the petitioner becomes co‑sharer in the Khewat in dispute and can defeat the pre‑emption suit of respondents for other portion of suit‑land. The suit of the respondents, on this ground, too could not be decreed and that while denying the tenancy of the petitioner over the suit‑land it was admitted by the respondents that possession of the petitioner over the suit‑land was as a co‑sharer. On this admission of respondents their pre‑emption suit could not succeed. Learned Lower Appellate Court erred in refusing to give effect to aforesaid admission of respondents on the technical ground but the written statement of the petitioner did riot contain averments that petitioner was co sharer in the suit‑land. The cause of petitioner finding support from admission of the respondents and other material/evidence on record the suit of the respondent could not be decreed and his suit as a whole was liable to be dismissed and that the learned Lower Appellate Court erred in appreciating the law of pleadings which requires that only and only material facts are to be averred in the pleadings and not their evidence. In the instant case the material fact between the parties was whether the respondents had superior right against the petitioner. Why, how and on what grounds the respondent has no superior right against the petitioner, were matters of evidence which could not be averred in the written statement. Learned Lower Appellate Court erred in dismissing appeal of petitioner on this technical ground that should have exercised its powers under Order XLI Rule 33 and should have dismissed the suit in toto and that it was the case of respondents themselves in their own evidence that no money consideration passed for the land in dispute and that land in dispute was obtained by the petitioner against consideration of some animals. In the presence of such evidence their. pre emption suit was not competent and that as per law laid down in PLD 1986 SC 360, the suit of respondent based on Khewatdari Mauza was liable to be dismissed. Said law being a declaratory one, is applicable to cases pending at any stage. Appeal being a continuation of original suit, all case re‑opened in appeal. Learned Lower Appellate Court was bound apply law and take into consideration the changed circumstances.

5. On the other hand, learned counsel for the respondents has submitted that the scope of revision is very limited and concurrent finding of facts recorded by Courts below cannot be interferred with. Regarding the admission. of Jamanbandi on which a note of ownership of the petitioner is recorded, the learned counsel submitted that the same cannot be looked into as it was an inadmissible document. The reasons being that where a document is produced in the Court but its author is not produced, in support of it 'the document is not proved. Learned counsel for the respondents further submitted that the right of the tenant is protected to the extent of one‑fourth of the area of land subject to pre‑emption and not one‑fourth of the land under his tenancy in view of paragraphs 25(3)(d) of the Land Reforms Regulation, 1972.

6. I have given due consideration to the valuable arguments on both sides.

7. First .of all I take scope of section 115, C.P.C. The said section reads as under:‑‑‑ "

115. Revision.‑‑‑ (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑‑‑ (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in he case as it thinks fit. Provided that, where a person makes an application under this subsection, he shall in support of such application, furnish copies of the pleadings, documents and order of the subordinate Court, and the High Court shall, except for reasons to be recorded, dispose of such application without calling for the record of the subordinate Court. Provided that such application shall be made within ninety days of the decision of the subordinate Court which shall provide a copy of such decision within threme days thereof, and the High Court shall dispose of such application within three months: (2) The District Court may exercise the powers conferred on the High Court by subsection (1) in respect of any case decided by a Court subordinate to such District Court in which no appeal lies and the amount or value of the subject‑matter whereof does not exceed the limits of the appellate jurisdiction of the District Court. (3) If any application under subsection (1) in respect of a case within the competence of the District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them. (4) No proceedings in revision shall be entertained by the High Court against an order made under section (2) by the District Court."

8. In the case of Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139 where it was observed that before considering the contentions of the parties on merit, we would like to mention here that the scope of interference with concurrent finding of fact by the High Court in exercise of its revisional jurisdiction under section 115, C.P.C. is very limited. The High Court while examining the legality of the judgment and decree in exercise of its power under section 115, C.P.C. cannot upset a finding of fact, however, erroneous it may be, on reappraisal of evidence and taking a different view of the evidence. Such findings of facts can only be interfered with by the High Court under section 115, C.P.C. if the Courts below have either misread the evidence on record or while assessing or evaluating the evidence have omitted from consideration some important piece of evidence which has direct bearing on the issues involved in the case. The findings of facts will also be open to interference by the High Court under section 115, C.P.C., if the approach of the Courts below to the evidence is perverse meaning thereby that no reasonable person would reach the conclusions arrived at by the Courts 'below on the basis of the evidence on record.

9. In the present case, one witness has been examined by the petitioner and one witness has been examined by the defendant and two documents, sale‑deed Exh.P.I and Jamanbandi for the year 1979‑80 Exh.P.2 have been produced by the plaintiff and Khasra Girdawari for the year 1979‑80 Exh.D.l and Jamanbandi for the year 1979‑80 Exh.D.2 have been produced by the defendant.

10. Learned counsel for the petitioner has drawn my attention towards the evidence which has been misread or non‑read. P. W.1 Faiz Bakhsh is the plaintiff, who deposed that he did not know that the vendee was having cultivation in the village. He also referred to Haji Hakim Ali D.W.l, who deposed that Muhammad Hassan is cultivating the suit‑land for the last 5/ 7 years and Idrees is also cultivating. In his cross‑examination, he admitted that in Killa Nos. l1, 12, 13. 15, 16, 17, 18, 19, 20, 21. 22, 23, 24 and 25 are cultivating by the defendant and that the cultivation by the defendant was 2/4 years before 1982 and that their cultivation stated from 1980 and again said that the cultivation was continuing prior to it since 1979 and earlier to that one Abdur Rehman was cultivating the land. D.W.2 Boota also stated in examination‑in‑chief that the suit‑land is cultivated by the defendant since the last 4/5 years and the crop prior to sale was cultivated by the defendant. He also stated that he know that prior to the purchase, defendant had cultivated. D.W.3 Muhammad Hussain is defendant, who deposed that prior to him Abdul Rehman was cultivating this land. Again said that he was cultivating it since 5/6 years and that prior to 2/3 years purchased he himself was cultivating it. Similarly, in cross‑examination put by the plaintiff, Muhammad Hussain defendant stated that it was incorrect to suggest that at the time of sale of land in dispute. his possession over the land was in the capacity of co‑sharer.

11. In the case of Muhammad Din v. Nizam‑ud‑Din etc. 1989 MLD 237 in a preemption case where admission by defendant that plaintiff was collateral of vendor it was observed that it was clinch matter against him even if ground of co‑sharership was not available.

12. In the case of Malik Muhammad Akram v. Khuda Bakhsh 2000 CLC 759 it was observed that where a document was admitted without challenge and such document was in admissible and not a valid document‑ even if the same was admitted and exhibited, would not be looked into toy establish the case on such document. Similarly, in the case of. Muhammad Jamil v. Muhammad Sharif 1985 CLC 2353 it was observed that where a document is produced in Court but neither author of the document is produced nor Patwari appeared in support of his note written on Jamanbandi, it was held that such document was not proved.

13. I am persuaded by the precedents reported as Malik Muhammad Akram v. Khuda Bakhsh 2000 CLC 759 and Muhammad Jamil v. Muhammad Sharif 1985 CLC 2353 and hold the mere note on Jamanbandi in the column of Kayfiyyat can be of no avail to the petitioner. Keeping in view of these depositions on record, the right of the petitioner as co‑sharer was not established and his right on the basis of his tenancy was established.

14. On the other hand, learned counsel for the respondents has submitted that the, right of the petition as a tenant is protected only to the extent of 1/5th of the area of the land subject to pre‑emption. Admittedly the area of land subject to pre‑emption is the area sold i.e. 40 Kanals and 1/5th of it comes to 8 Kanals. Reliance has been placed on Fateh Khan v. Abdul Rahman 1983 SCMR 293 where the learned counsel for the petitioner had argued before the Honourable Supreme Court that the petitioner being tenant of 30 Kanals in the suit‑land having total area of 385 Kanals and 3 Marlas and being in cultivating possession of 30 Kanals as tenant‑at‑will since long, has a superior right as against the respondent under paragraphs 25(3)(d) of the Land Reforms Regulation, 1972 and he was entitled to a decree for 30 Kanals. the Honourable Supreme Court observed that the said argument was devoid of any legal force and observed that it was admitted that the petitioner was tenant‑at‑will of 30 Kanals of land which was pre‑empted by the respondent, he purchased 1/4th and to that extent his right was protected under paragrpah 25(3)(d) of the aforesaid Regulation and, therefore, he would be entitled to 1 /4th of total area under his cultivation which comes to 7 Kanals and 10 Marlas and the petition was dismissed.

15. The argument of the learned counsel for the petitioner that the total area under cultivation of the petitioner being 165 Kanals and 16 Marlas of land or 3316 Marlas at the time of sale, the total land of disputed Khewat No.46 is 200 Kanals or, 4000 Marlas and thus, proportion of land under tenancy of the petitioner with total land by application of the proportionate share‑formula to the land purchased by petitioner, the exemption comes to 33 Kanals and 3 Marlas.and not 8 Kanals, is fallacious. In a pre‑emption case it is the sale which is pre‑empted. The share‑sold is the foundation for claiming of exemption. In the present case the share‑sold is 40 Kanals which is 1/5th of the total area of 200 Kanals. Hence in view of para. 25(3)(d) of the D M.L.R: 115 and the dictum laid down by the Honourable Supreme Court in the case of Fateh Khan (Supra) the entitlement of the petitioner comes to only 8 Kanals being 1/5th of 40 Kanals. Both the Courts below have correctly appreciated the facts and rightly followed the law laid down in the above dictum of the Honourable Supreme Court. For the above reasons, the revision petition is without merit and the same is dismissed. Q.M.H./M.A.K./M‑495/L Petition dismissed.