2002 PLP 3900 (YLR)

2. Allah Dad petitioner filed the suit on 2‑6‑1973 whereas the date of filing of the suit of Asghar Khan was 11‑3‑1974. The petitioner as well as his rival pre‑emptor Asghar Khan admittedly claimed their possession to the extent of an area of 32 Kanals as tenant‑at‑will. The Collector without taking into consideration that the pre emptor claimed possession only in specific Khasra numbers, decreed the suit for whole of the land in favour of Allah Dad. The Additional Commissioner (Revenue) while accepting the appeal of Asghar Khan, rival pre‑emptor held that he being in possession of the land as tenant‑at‑will at the relevant time had superior right of pre‑emption and the Member (Revenue) Board of Revenue, Punjab, while affirming the judgment of the Additional Commissioner (Revenue) dismissed the revision of Asghar Khan with the observation that he was recorded as tenant‑at‑will in the Revenue Record prior to the sale of the land.

3. Learned counsel for the petitioner has contended that the Additional Commissioner (Revenue) and the Member (Revenue), Board of Revenue, without proper scrutiny of the evidence on record, decreed the suit in favour of Asghar Khan through misreading and non‑reading of evidence. The learned counsel having read highlighted the evidence in the following manner:‑‑ Karam Dad, D.W.1, the vendor of the property, in his statement has categorically stated that at the time of sale, Asghar Khan was not tenant of the land. Learned counsel with reference to the statement of Asghar Khan, D.W.2 and the rival pre‑emptor pointed out that Asghar Khan has admitted in his statement made before the Collector that he has not in possession of the land for the last four and a half years and that admittedly he was not in possession of the land at the time of sale. Said Rasool, one of the vendee, while appearing as D.W.3 has stated that Allah Dad was in possession of the land for the last 3‑4 years and similarly Dalil Khan D.W.4 and Naik Muhammad D.W.5 while appearing in the Witness Box have sated that the land was in possession of Allah Dad. Muhammad Amir P.W.1 and Muhammad Ashraf P.W.2 have stated that the land was in possession of Allah Dad for the last ten years and that the said P.Ws were not cross‑examined by the respondent and consequently the possession of Allah Dad petitioner was admitted and his claim of possession over the land for the last ten years was not dislodged. The Revenue Record i.e. Khasra Girdawari and the Jamabandi pertaining to the relevant period would also support the claim of Allah Dad.

4. Learned counsel representing Asghar Khan respondent on the other hand while banking upon the findings given by the Additional Commissioner (Revenue), Rawalpindi, contended that as per Revenue Record, Asghar Khan being in possession of the land had superior right of pre‑emption and that the finding on the question of fact concurrently arrived at by the Revenue Authorities would not be challengeable before this Court in exercise of its Constitutional jurisdiction, even if the same are erroneous. Learned counsel next argued that there being no misreading or non‑reading of evidence on record, the Constitutional petition was not maintainable and in support thereof has placed reliance on Nimatullah v. Ghulam Rasool and others (1988 SCMR 1380), Khizar Hayat and 4 others v. Municipal Corporation, Faisalabad, through Mayor and 2 others (2000 CLC 1374) and Mehr Baz Shah v. United Bank Limited, Bank Square, Lahore through Provincial Head Chief and 2 others (2000 MLD 526).

5. The perusal of the evidence brought on record by the parties would show that Asghar Khan rival pre‑emptor in his statement has admitted that he was out of possession of the suit‑land for the last four and a half years. The statement of the witness was recorded on 18‑7‑1977 whereas the sale took place on 12‑3‑1973 and thus undoubtedly the said respondent was not in possession of the land after January, 1973 and the entries in the Revenue Record showing him as tenant in view of his admission would be negated. This is correct that except Khasra Girdwarari, the presumption of truth is attached the entries of the Revenue Record but this presumption being rebutable would be negated by the admission of Asghar Khan respondent. Thus the entries in the Khasra Girdawari in the name of Asghar Khan would be of no use and benefit to him. The claim of Allah Dad petitioner that he was in possession of the land for the last ten years was supported even by the witnesses produced by Asghar Khan and the same definitely was much prior to the date of sale. The statement of Allah Dad in this behalf was corroborated, by Muhammad Amir and Muhammad Ashraf P.Ws and Asghar Khan having not cross- examined them admitted their statements as correct. Keeping in view the oral evidence brought on the record, the entries in the Revenue Record would lost the legal value and sanctity and consequently the finding of fact arrived at by the Additional Commissioner (Revenue) on the basis of Revenue Record being in conflict with the oral evidence would be suffering from misreading and non‑reading of evidence. The Member (Revenue), Board of Revenue, has neither discussed any evidence nor attended the controversy in the light of the oral evidence available on record and while affirming the order of the Additional Commissioner (Revenue) dismissed the revision petition filed by the petitioner. This may be observed that the Revenue Authorities have also omitted to take notice of the following important questions involved in the case:‑‑ (i) The superior right of pre‑emption on the basis of possession as tenant would be confined only to the land subject‑matter of tenancy. (ii) The superior right of pre‑emption must exist on the date of sale, on the date of filing of the suit and on the date of decree. In the present case, admittedly, the petitioner and Asghar Khan respondent/rival pre‑emptor were claiming their tenancy to the extent of only an area of 32 Kanals, therefore, their superior right of pre‑emption if any was confined only to that extent, whereas the suit was decreed for the total land under sale.

6. As per admission of Asghar. Khan respondent, his possession was subsequent to the sale of land rather he was not in possession of land on the date of filing the suit by Allah Dad, therefore, he had no right to pre‑empt the sale whereas the claim of Allah Dad was supported by the admission of Asghar Khan who was in possession of the land on the date of sale and thus notwithstanding the entries in the Revenue Record in the name of Asghar Khan, the petitioner was holding the possession of the land as a tenant‑at‑will. However, on the date of passing the decree, the possession of the petitioner was not established. Learned counsel for the petitioner at this stage has submitted that the report, dated 20‑2‑1986 prepared by the Girdawar of the concerned Halqa has been placed on record which was not made part of the evidence would show that the land of Khasra No. 2393 was in exclusive possession of Allah Dad since 1969 and his possession continued till the date of the decree.

7. The perusal of the order of Member (Revenue), Board of Revenue, would show that the pivotal issue in the light of the respective claim of the parties and the evidence in support thereof was not discussed. The orders passed by the Collector and Additional Commissioner (Revenue) are silent on these questions and also being at variance are suffering from defect of misreading and non‑reading of evidence. The decree in favour of Asghar Khan was passed even for the area not forming part of the tenancy of the pre‑emptor. The case of rival pre‑emptor who being in possession on the date of sale and on the date of decree was claiming superior right of pre‑emption was also not properly considered.

8. For the foregoing reasons, the orders of Revenue Authorities challenged through this petition are declared to be illegal and have been passed without lawful authority. The case is remanded to the Additional Commissioner (Revenue) for decision of the appeal afresh after providing proper opportunity of hearing to the parties with permission to bring on record the additional evidence; if need be. This writ petition is allowed in the above terms with no order as to costs. H.B.T./A‑512/L Petition allowed.