1997 PLP 2602 (MLD)

1983 SCMR 293 ref Islam Ali Qureshi for Appellant. Sardar Altaf Hussain Khan for Respondent Date of hearing: 30thdanuary, 1995. On 8‑1‑1978 Shahid Ali respondent herein filed a suit for possession of land measuring about 14 Kanals, 18 Marlas through exercise of right of pre -emption. His claim was that he was the collateral of the vendor. The suit was resisted by the appellant‑vendee on the ground that he had the first right of purchase because of being tenant of the suit land. Various issues were tried. Vide judgment dated 11‑7‑1978 the trial Court dismissed the suit after holding that the appellant‑vendee was the tenant and could successfully defend the pre- emption claim of the respondent. On appeal by pre‑emptor, learned District Judge set aside the decree of dismissal and granted a decree for possession to the pre‑emptor after holding that the appellant‑vendee has not been able to show that he was the tenant of the suit land. Aggrieved, the vendee has filed this second appeal in this Court which was admitted on 21‑10‑1978.

2. In view of the fact that it is a judgment at variance I have reviewed the entire evidence with the assistance of the learned counsel for the parties. The sale‑deed is in favour of Muhammad Bakhsh, petitioner herein while the documents Khasra Girdawaries Exh.P.2. Exh. P.8 and Each. D.1 as also the Jamabandi for the year 1975‑76 Exh. P.3 record one Muhammad son of Kalu as the tenant alongwith Lal son of Gamman and Ahmad son of Kalu. In order to connect himself as tenant as recorded in the Revenue Record, the appellant produced D.W.1 who stated that the appellant was also known as alias Muhammad. The appellant himself appeared as D.W.2 and made this assertion. When the plaintiff‑pre‑emptor appeared in rebuttal he only denied that vendee was Muhammad the tenant recorded in the Revenue Record. No other witnesses such as Patwari, Lumberdar or the real Muhammad as claimed by pre‑emptor was produced by him. The pre‑emptor, however, admitted in cross‑examination that about five years ago it was Kalu the father of Muhammad the present appellant‑vendee and after review of the evidence I am inclined to agree with the learned trial Court that the appellant‑vendee is the same person who is recorded as Muhammad son of Kalu in the Khasra Girdawaris and the Jamabandi as tenant alongwith Ahmed and Lal. The finding of the learned District Judge on this aspect of the case is set aside.

3. Learned counsel appearing for the pre‑emptor‑respondent has urged that in the event of the appellant being held as tenant, the entire land can still not be given to him because Muhammad son of Kalu is not the exclusive tenant but only the joint tenant alongwith his brother Ahmad and one Lal son of Gamman He has relied on 1983 SCMR 293 to support the contention that in the event of the joint tenancy the share of the tenant is proportionately reduced. In the light of the entries in the Khasra Girdawari and the statement of Lal as declared by the Supreme Court, the learned counsel for the appellant has no convincing reply to this argument. In the circumstances, I hold that the appellant‑vendee is entitled to retain only 1/3rd of the land while remaining 2/3rd can be successfully pre- empted by the respondent‑pre‑emptor on payment of 2/3rd of the sale price. I order accordingly.

4. As a result, both the judgment and the decree of the trial Court are set aside and fresh decree shall issue in terms stated above. This appeal is partly allowed with no order as to costs. H.B.T./M‑2649/L Order accordingly.