1987 PLP 3314 (MLD)

Tahir Qureshi for Respondents. Date of hearing: 12th October, 1987. This civil revision arises out of a suit instituted on 20-4-1980 by the petitioners against the respondents in the Civil Court at Bhalwal District Sargodha for possession through pre-emotion in respect of the agricultural lard measuring 21 kanals being 420/16743 share in Khewat No.150 Khatoni Nos. 437 to 445, Salam Khata, Qita 132, measuring 837 kanals and 3 marlas situated in Mauza Pindi Kot Tehsil Bhalwal District Sargodha purported to have been sold out by one Rahma to the respondents vide mutation No.208 dated 24-4-1979 in consideration of Rs.18,

000. The petitioners alleged their superior right, pf pre-emotion as against the respondents being collaterals and co-sharers in the Khata. According to the petitioners the sale price was in fact fixed at Rs.7,500 and the same was paid.

2. The respondents contested the suit by denying the averments as made in the plaint and maintained that the petitioners had no cause of action, the suit was bad due to misjoinder of parties. The respondents pleaded a superior right of pre-emotion as against the petitioners alleging that they were the tenants of the suit land. As to the sale price the respondents said that the amount of Rs.18,000 was fixed in good faith as the price of the land and the same was actually paid which was in accordance with the market value of the suit land.

3. The learned Civil Judge dismissed the suit vide his judgment dated 30-6-1981 by holding that the respondents had a superior right of pre-emotion being the tenants of the land as against the petitioners despite the fact that the petitioners were collaterals and owners in the estate. The amount of Rs.18,000 was fixed as the price of the land and the same was actually paid. In view of the superior right of the respondents the petitioners had no cause of action.

4. The petitioners being aggrieved filed an appeal which came .to be decided by the learned Additional District Judge, Sargodha. The learned Appellate Court upheld the judgment of the learned Civil Judge and dismissed 'the appeal vide' its judgment dated 25-9-1984.

5. The learned counsel for the petitioners has contended that the suit could not be dismissed in toto when the vendees were in possession as tenants of killas Nos.6, 7- and 14- of Square No.112 jointly owned by the vendor and others. Since the vendees were tenants under all the joint owners, therefore, their defence as tenants was to be construed -ratio proportionally qua the actual share of the vendor and the total joint holding. The learned counsel has relied upon. Fateh Khan v: Abdul Rahman (1983 S C M R 293) and the original decision dated 5-10-1981 in Civil. Revision No.123/81 entitled "Fateh Khan v. Abdul Rehman from which decision a leave to appeal was sought which was refused by the august Supreme Court. The august Supreme Court in the said decision while upholding the decision of the High Court 'and refusing the leave to the petitioner therefrom observed, "It is admitted that the petitioner was tenant-at-will of 30 kanals of land bearing Khasra No.616 which was pre-emoted by the respondent, he purchased 1/4th and to that extent his right is protected under paragraph 250Xd) of the (Land Reforms Regulation 1972). Therefore he would be entitled to 1/4th of total area under his cultivation which comes to 7 kanals and 10 marlas."

6. Now in this case it is an admitted position that the respondents are tenants as to 24 kanals of land comprised in Killas Nos.6, 7 and 14 of Square No.112 which is within their actual cultivation out of the joint Khata which spreads over 837 kanals 3 marlas. The share of the vendor in the Khata which has been sold to them is 420/16743 extending to .21 kanals so applying the abovesaid principle as enunciated by the learned Supreme Court in the said decision the respondents as tenants will 'be entitled only to 420/16743 of the tots area under their cultivation which comes to 12.040852 marlas in the right of being tenants. Worked out as such the petitioners who have otherwise established their superior right of pre-emption being collaterals as well as co-sharers are entitled to succeed to 407.95915/16743 share extending to.20 kanals and 7.95915 marlas.

7. The learned counsel for the respondents has not taken any exception as to the applicability, of the abovesaid principle.

8. In this view of the matter the judgments of both the Court, below are hereby set aside in accepting this revision petition and the suit as brought by the petitioner` is decreed to the extent of the share i.e. 407.95915/16743 of the land coming to 20 kanals and 7.95915 marlas in the joint Khata at the payment of the full sale price amounting to Rs.18,000 minus the Zar-i-panjam. The petitioners are ordered to deposit the said amount in the trial Court within two months from the date of this, judgment failing which the suit shall stand as dismissed. In the circumstances there is' no order as to costs S.Q./K-52/L Petition accepted.