1990 PLP 123 (MLD)

Through this single judgment I propose to dispose of two Civil Revision No.1709‑D/83 filed by Muhammad Aslam and Muhammad Akram (hereinafter to be called as vendees) against Zia Ullah Khan (hereinafter to be called as pre emptor) and Civil Revision No.1781‑D/83, filed by the pre‑emptor against the vendees against the judgments and decrees dated 6‑7‑1983 passed by the learned Additional District Judge, Bhakkar.

2. The facts briefly are that on 23‑9‑1980, the pre‑emptor filed a suit for possession by pre‑emption of agricultural land measuring 188 kanals and 13 marlas on the basis of being collateral, co‑ sharer in khata and co‑sharer in the estate against the vendees in the Court .of Civil Judge, Bhakkar. The suit was resisted. Issues were framed. The parties led evidence. The trial Court decreed the suit on 15‑3‑1982. Feeling aggrieved, the vendees filed appeal which was partly allowed by the learned Additional District Judge, Bhakkar on 6‑‑7‑1983. who while maintaining the decree to the extent of 147 kanals and 7 marlas, dismissed the suit of the pre‑emptor to the extent of Khasras Nos.8409 and 8410 measuring 41 kanals and 6 marlas on the ground that the vendees were cultivating the aforesaid khasras as tenant at the time of sale.

3. Learned counsel for vendees submitted that they (vendees) were tenant of the entire suit land, as such, the suit should have been dismissed in toto; that the findings of the Courts below are based on misreading of khasra girdawari Ex.P.5 and copy of Jamabandi Ex.P.6, which show that the vendees were cultivating the whole suit land as tenant at the time of sale. On the other hand, the learned counsel for pre‑emptor maintained that the vendees were not the tenant of the entire suit land; that the findings of the Appellate Court that the vendees were tenants of Khasras Nos.8409 and 8410 is based on misreading of the copy of plaint Ex.P.9 in a suit for possession by pre‑emption filed by the vendees against Inayat Ullah Khan, for possession of the suit land and it was on the basis of decree passed in that suit that the vendees have purchased the land in dispute.

4. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for pre emptor. I do not find any documentary evidence (Revenue record) in proof of the tenancy of the vendees on the entire suit land. In column "Nam Kashrat" of the copy of khasra girdawari Ex.P.5 (Kharif 1977 to Rabi 1980), it has been stated against Khasra No.8407: Against Khasra No.8409, relating to Kharif 1977, it has been entered: Entry in Khasra No.8410 is; Entry in Rabi 1980 against Khasra No.8409 is as under: Against Khasra No.8410 relating to Rabi 1980, it has been stated: The entries in khasra girdawaris do not carry presumption of truth. If for the sake of arguments, it is assumed that the entries having made for the discharge of the official duty of Patwari, carries some weight or presumption of correctness then the same stands effectively rebutted by the contents of plaint Ex.P.9, which was filed by the vendees on 18‑7‑1979 against Inayat Ullah Khan for possession of the suit land including Khasras Nos.8409 and 8410. In para. 2 of the plaint, Ex.P.9, it has clearly been stated that; It is on the strength of the decree granted on 1‑10‑1979 in this suit that the vendees claim to have purchased the suit land. Furthermore, it is on the basis of sale through decree obtained in the aforementioned suit that the pre‑emptor has filed the present suit against the vendees. It is thus very much obvious that on their own showing, the vendees were not in possession of the suit land as tenant at the time of sale and as such, the judgment of the learned Additional District Judge suffer from non‑reading of documentary evidence i.e. copy of plaint Ex.D.9. It may be noted here that the trial Court had relied upon the copy of plaint Ex.D.9 to hold the vendees as "not tenant' of the suit land at the time of sale. I do not see any legal infirmity in the judgment and decree passed by the trial Court on 15‑3‑1982. The learned counsel for the vendees has not been able to point out any misreading/non‑reading on the part of the trial Court. Strangely enough, the learned Additional District Judge has neither considered this material document Ex.P.9 nor has he discussed the reasons given by the trial Court in support of its findings on issue relating to the superior right of pre- emption. Pursuant to the above discussion, Civil Revision No.1781‑D/83 is accepted. The judgment and decree of the Appellate Court dismissing the suit to the extent of Khasras Nos.8409 and 8410 is set aside and the decree passed by the trial Court is upheld in toto. Resultantly, Civil Revision No.1709‑D/83 fails and is dismissed. The parties will bear their own costs. AA./Z‑122/L Order accordingly.