P L D 1983 Peshawar 238 (PLP)

(7) In case of proof of issues Nos. 5 and 6, has the plaintiff any cause of action? (8) Does the plaintiff possess superior right of pre‑emption? (9) Relief. Upon these issued, the petitioner retied on the evidence already produced by him upon the previous issues while the respondent produced more evidence. On examination of the evidence of the parties brought on record, the learned trial Judge answered issues Nos. 1 and 2 in favour of the plaintiff/petitioner while issues 3 and 4 were answered in the favour of respondent. Issues 5 to 8 were decided against the petitioner. As a result, the learned trial Judge dismissed the suit of the plaintiff/petitioner, vide judgment dated I1‑2‑1961. Aggrieved by this judgment, the petitioner went in appeal to the District Court and the learned Additional District Judge who heard the appeal concurred in the findings of the learned trial Judge and dismissed the appeal, vide his judgment dated 1‑7‑1981. Hence this revision application. The only and one point urged before me by the learned counsel for the petitioner is that his client with reference to the revenue record is co‑sharer m the suit land and thus, according to him, the two Courts below were wrong to hold against him. It may here be mentioned that the petitioner had not raised the plea of co‑sharership and for that purpose he filed an application before the learned Additional District Judge for the amendment of the plaint but he dismissed the application, vide order dated 7‑6‑1981. In reply to the contention of the learned counsel for the petitioner, the learned counsel for the respondent submitted that it is established from the evidence on record that Mst. Qadar Jan was the sole owner of Khasra No. 208 measuring 10 Kanals and 7 Marlas and as the respondent has purchased land comprised in this very Khasra, there would be no question of co sharership of the petitioner in the suit land. He further contended that the petitioner also failed to show that he had any land contiguous to the suit land or was participator in appendages and immunities. The judgments of the two Courts below will show that the respondent had based his claim on sale‑deed dated 9‑11‑1942 (Exh. D. W. 2/2). This deed shows that Khasras Nos. 145, 177 and 208 were jointly owned by two brothers, namely, Muhammad Amir (the father of petitioner) and his late brother Gul Muhammad, Mst. Qadar Jan vendor was their sister. Gul Muhammad died issueless. His share in the above three Khasras was inherited by Muhammad Amir (the father of petitioner) and Kist. Qadar Jan proportion ately according to Shariat. In the events that happened, Muhammad Amir transferred the entire area of land comprised in Khasras No. 208 to Mst. Qadar Jan and retained to bimself Khasras Nos. 145 and

177. This position is clear from the deed (Exh. D. W. 2/2) and also stands confirmed from Khasra Girdawaris up to 1971. The above deed was executed between Muhammad Amir and Mst. Qadar Jan. It is stated in the deed that Khasra No. 208 measured 10 Kanals and Muhammad Amir sold his share in this Khasra to Mst. Qadar Jan. It is also recited in the deed that her Shari share due to her from her late brother Gul Muhammad in Khasra Nos. 145, 177 and 208 was given to her in Khasra No.

208. Thus according to this deed Mst. Qadar Jan became the sole‑owner of Khasra No# 208 and she abandoned her right and concern as regards Khasras Nos. 145 and 177 in favour of Muhammad Amir (the father of petitioner) who became the exclusive owner of the said two Khasras. As indicated above, the case of the respondent was that as a matter of fact, he had purchased Khasra No. 208, measuring 10 Kanals and 7 Marlas, of which Mst. Qadar Jan was the sole‑owner on the basis of the deed (Exh. D. W. 2/2); that notwithstanding this fact Khasras Nos. 145, 177 and 208 were still wrongly shown in the revenue papers to be in the joint owner ship of Mst. Qadar Jan and the petitioner: that this wrong position in the revenue record against factual position obliged the parties to the impugned registered sale‑deed in the present case to mention the three Khasras Nos. 145, 177, and 208 in order to satisfy the formalities required by M. L. R. 64 which says that a vendor shall sell his entire property and not a part of it. The learned counsel for petitioner agrees that in the circumstances no legal objection could possibly be taken by his client to the above course of the respondent unless he was able to discharge the burden that Mst. Qadar Jan was not the sole‑owner of the area of land comprised in Khasra No.

208. Now the petitioner was faced with the d.‑ed (Exh. D. W. 2/2) by which his father relinquished his right of ownership in Khasra No. 208 in favour of Mst. Qadar Jan. On this aspect of the case, this is what he has stated in his evidence. Thus it comes from the mouth of the petitioner himself that Mst. Qadar Jan was the sole‑owner of the area comprised in Khasra No. 208. 1,1 therefore, do not see any reason as to bow he can possibly claim that hel is co‑sharer in Khasra No.

208. He also admits that the area of landl comprised in this Khasra No. would be more than 10 Kanals. In this respect, he stated :‑‑ Urdu Typing 241 The learned counsel for the petitioner contended that in any case as the petitioner .is shown in the revenue record to be co‑sharer in Khasra No. 208. his pre‑emptive right is established. The fallacy of this argument is obvious, He concedes that on the basis of the deed (Exh. D. W. 2/2) and in the light of the evidence of his client, Mst. Qadar Jan was the sole‑owner of the area of land comprised in Khasra No.

208. This being the factual position, it should not be hit by the wrong entries in the revenue record. It may be observed that wrong entries in the revenue record are not to be given evidentiary value or for that matter wrong entries in the revenue record cannot be substituted for fait accompli. The sole‑ownership of Mst. Qadar Jan as regards Khasra No. 208 is proved from another angle. It was not the case of the petitioner that Mst. Qadar Jan was getting produce in Khasras Nos. 145 and

177. This being the position, it is again clear that on the basis of the deed (Exh. D. W. 2/2) Mst. Qadar Jan became the owner of the area comprised in Khasra No. 208 to the exclusion of none. It is also clear from the record that originally the petitioner bad no based his claim of pre‑emption on the ground of co‑sharership. A referericl to the original. plaint and the amended plaint will reinforce me in this conclusion. It is clear that in the original plaint he bad based his claim of pre‑emption on the grounds of contiguity and participation in appendages and immunities. But in the course of proceedings before the trial Court, he managed to manipulate the original plaint with different ink and different pen. The petitioner added a ground of co‑sharership by interpolation (فﻠﺍ) meant for ground "contiguity and participation in appendages and immunities" was, overwritten and was rendered (ب) and above this ground was added ground named ground (فﻠﺍ) with regard to co‑sharership. That this is a manipulation is self‑conspicuious and needs no comments for proving it. It shows that it was already known to the petitioner that he had no share in the suit property comprised in Khasra No.

208. No ground of co‑sharership was taken in the amended plaint. The learned counsel for the petitioner conceded and rightly that as regard the pre‑emptive claim of his client on the grounds of contiguity and participation in appendages and immunities, he will have no case. In support 6f this claim, the petitioner failed to produce Aks and other revenue record. The Patwari was also examined, but he did not say that the petitioner had land contiguous to the suit land or was participator in appendages and immunities. For the reasons aforesaid, it is abundantly clear that Mst. Qadar Jan was the sole‑owner of the land comprised in Khasra No. 208 and she validly sold it to the respondent and as the petitioner failed to show any of the qualifications in his favour prescribed by the law of pre‑emption, the two Courts below rightly dismissed his suit. This revision application, therefore, fails and is dismissed. No order as to costs. M. Y. H. Revision rejected.