2001 PLP 1853 (YLR)

The respondent/plaintiff has relied upon Exhs.P.2., P.3 while appellants/defendants relied upon Exh.D.3 and Exh.D.4 Exh.P.2 is copy of Khasra Girdawari showing Kharif and Rabi Crops of 1971 and Exh.P.3 another copy of Khasra Girdawari showing crops in Kharif 1968, Rabi 1969 and Kharif 1969 and Rabi 1970. .Exh.D.3 is a Khasra Girdawari for Rabi-Kharif 1968-69, Kharif Rabi 1969 70, Kharif 1970 and Rabi 1971. Exh.D.4 is a copy of Register Haqdaran Zamin for the year 1967-68 in respect of Khata Nos.147, 148, 149 and

150. According to Exh.D.4 Khata No.147 had two Khatoonis i.e. Khatooni No.242 and Khatooni No.243. Allah Ditta is shown the owner of both the Khatoonis. In cultivation column Khatooni No.242 is shown in possession of the owner. In column No.5 it is shown that it comprises of two fields bearing Survey Nos.32/6/3 and 12/2/2. In column No.6 the area of kind of land of Khasra No.32/6/3 is shown 1 Kanal, 4 Marlas Ghayr Mumkan and against Khasra No.12/21/2 and 3 Kanals, 12 Marlas. Khatooni No.243 in column No.4 shows that the cultivator was Fazal son of Ahmad, Ghayr Murusi while column No.8 shows that the rent paid was Batai ba Hissa Nisfi had comprised 6 fields namely 7/31/1 measuring 4 Kanals, 24/18/2 measuring 4 Kanals, 19/1 measuring 4 Kanals, 46 Marlas and 17/3 measuring 1 Kanal, 4 Marlas. The total area of all these four fields was 18 Kanals, 16 Marlas, out of which 17 Kanals and 12 Marlas were shown as cultivator by flood while uncultivated being-. Ghayr Mumkan was 1 Kanal and 4 Marlas. Khata No. 148 shows that it has two Khatoonis bearing Nos.244 and

245. Allah Ditta is shown in the column of ownership. This Khatooni had three fields, out of which one field bearing Khasra No.13/18/3 measuring 13 Marlas was Barani and was shown under cultivation of Bashir Ahmad son of Ghenhna Khan Ghayr Mursui and column of Lagan Warranty. It is mentioned that Batai was ba Hissa Barabar. The other two fields comprises Khata No.7/8/1 measuring 1 Kanal, 12 Marlas and Khasra No.7/4 measuring 1 Kanal, 4 Marlas. Both these fields were mentioned as cultivated by Salaab and in cultivating possession of Fazal Ahmad, Ghayr Murusi, and in red column it is mentioned that Batai was ba Hissa Barabar. The total area of these two fields was in occupation of Fazal Ahmad shown as 2 Kanals, 12 Marlas (13 Marlas were cultivated by Barani and 2 Kanals, 16 Marlas were cultivated by Salaabi). In Khatooni No.249 Fazal Ahmad is shown as non-occupancy (Ghayr Murusi) and throughout in column No.8 which relates to rent it is mentioned that Batai was ba Hissa Nisfi. In column No.10 relating to remarks, six mutations have been mentioned. Five of which are in black ink and one in red ink. Those in black ink are:-- (1) Mutation of Inheritance 667/1 (2) Abandonment of Shaamlat 788 (3) " " " 787 (4) Ishtrak (Consolidation) 789 (5) Mutation of Partition 790 The one in red ink is:

Mutation of Sale by 849 (in red Allah Ditta son of Haji ink) Caste Gujjar Bure In favour of Fazal and Rehmat sons of Ahmad Din Caste Tarkhan resident of the same village since on 4-4-1970. Appellants were non-occupancy tenants in the suit land and that an amendment had been made in the Land Reforms Regulation, 1972 (Martial Law Regulation No. 115) which was enforced with effect from 19-5-1976 and the jurisdiction of the Civil Courts was ousted in respect of pending cases with effect from Kharif, 1973 with retrospective effect. As an appeal is continuing of the suit at the relevant time the same should also have dismissed by the learned Lower Appellate Court in view of the said amendment. In the case of Haq Nawaz v. Taja Mehmud and others (1981 CLC 1696) while interpreting para. 25(3)(d) of the Martial Law Regulation it was observed as under:

"By inserting clause (d) in sub paragraph (3) of paragraph 25 of the said Regulation, the Legislature had not only laid down a qualification, in addition to the qualifications enumerated in section 15 of the Punjab Pre-emption Act, 1913, hereinafter referred to as the said Act, for claiming a right of pre -emption but had also, declared that the qualification so added shall be superior to all the qualification finding mention in section 15 of the said Act. It is too well-known that if a person possesses one of the qualifications given in section 15 of the said Act and another person having another qualification appearing therein are out to acquire or retain some land sold by a third person, on the score of their respective qualifications, the one whose qualification is superior to that of the other will succeed in getting/retaining the land regardless of the fact that the person with superior qualification is the pre -emptor or the vendee qua the sale by which the land is transferred. If this proposition holds good in respect of the qualifications mentioned in section 15 of the said Act, there appears to be no good reason for adopting a different approach in regard to the qualification given in clause (d) in sub-paragraph (3) of paragraph 25 of the said Regulation, which is superior to all the qualifications listed in section 15 of the said Act. I am, therefore, of the considered view that just as a pre -emptor claiming one of the qualifications given in section 15 of the said Act cannot succeed against a vendee having another qualification mentioned therein, which is superior to the one asserted by the pre-emptor, a suit for pre-emption by a person having, any of the said qualifications must fail if it is in regard to a sale of land in favour of a person who cultivated it as a tenant at the time of its sale." On the other hand, learned counsel for the respondents submitted that the appellants were not tenants in the land in dispute and that the document Exh.D.2 mentions the words (Ghayr Murusi) which do not mean that they were tenant. He referred to the case of Mst. Bhag Bhari, etc. v. Mst. Bhagan and another (PLD 1954 Lahore 356) where the- words (Ghayr Murusi) were entered in the cultivation column and it was observed that by itself the entry (Ghayr Murusi) does not necessarily imply that the person so descended is a 'tenant. The Patwari uses these words for every person who is in possession without any right or title. The entries in the cultivation column are always to be read alongwith the entries in the rent column. I have given due consideration to the valuable arguments on both sides. As per admitted record on both sides Batai in this case is recorded as ba Hissa Nisfi, i.e. the rent which was paid by the cultivator to the owner was half of the total crop, thus, the appellants were tenants and were in possession of the and as tenants in Rabi 1971. The Khasra Girdawari for the period after Rabi 1971 has not been produced. Under Martial Law Regulation No. 115 the rights could come to the appellants from Kharif 1972 and not from retrospective effect. The mutation in favour of the appellants was sanctioned on 4-4-1970. While, the suit was filed on 2-4-1971 and as such the suit was within one year. Still further it is on the record that the sale was not made by means of mutation or through any registered sale-deed, but it was a sale reflected through the Decree, dated 27-6-1968 passed by Mr. Muhammad Islam Bhatti, learned Administrative Civil Judge, Gujranwala, which fact is incorporated in column No. 15, the column of remarks in the Mutations registered at No.849 on 24-6-1969 by Patwari Muhammad Yaqub. It was Supervised by Lal Khan Girdawar Ishtimal on 20-3-1970 and was sanctioned by the Revenue Officer on 4-4-1970. Therefore, section 30 of the Punjab Pre-emption Act and Article 10 of the Limitation Act were not applicable to his case: In the case of Ali Nawaz v. Mst. Saira Bibi, etc-. (1999 SCMR 1909) which is a judgment of a Full Bench of the Supreme Court of Pakistan wherein it was observed that limitation period for filing of suit against a sale reflected through a decree of the Court is not governed by provisions of section 30 of the Pre-emption Act, 1913 and Article 10 of the Limitation Act. In such cases, the residuary Article 120 shall apply and the period of limitation would be six years with effect from the date of accrual of cause of action. The upshot of the whole discussion is that the contention of the respondent is borne out from the record. The concurrent findings are in favour of the respondents and that learned counsel for the appellants could not point out any misreading and non-reading of any evidence or any material irregularity' which are essential under section 100, C.P.C. and that in this way the appeal is without merit and the same is dismissed. H.B.T./F-55/L Appeal dismissed.