1993 PLP 2035 (SCMR)

ABDUL SHAKURUL SALAM J: ‑‑This order will dispose of two appeals by leave bearing Nos.1154 and 1155 of 1990.

1. Relevant facts are that the respondents purchased land measuring 45 Kanals and 18 Marlas situate in Mauza Goherwala, District Bhakkar through a registered sale‑deed for a consideration of Rs. 15,000 on 9‑8‑1978. The appellant filed a suit for pre‑emption on the ground of being an owner in the estate and co‑sharer in the Khata. The respondents contested the suit on the ground that they were tenants of the land at the time of its sale and that they had paid in fact Rs33,552 as price and spent Rs.5,000 on improvements of the land. The learned trial Court framed the following two issues relevant for the purposes of this appeal: (1) Whether the plaintiffs had superior right of pre‑emption? (7) Whether the defendants were tenants on the suit land? After the trial, finding the aforesaid issues in favour of the respondents, the appellant's suit for pre‑emption was dismissed vide judgment and decree by the learned Civil Judge 1st Class, Bhakkar on 29‑3‑1981. The appellant filed an appeal before the learned District Judge, Bhakkar who accepted the same vide judgment and decree dated 17‑5‑1983 on the ground that Khasra Girdawari Exh.D‑2 produced by the respondents showed that Muhammad Bakhsh one of the vendees was not a tenant of the suit land and as the other vendees had joined a stranger under the doctrine of sinker the rights of the other two vendees Rab Nawaz and Ghulam Hussain were also lost. The respondents filed a revision petition in the Lahore High Court. It was accepted by a learned Judge on the ground that the point with regard to sinker was never pleaded nor put to issue nor raised before the learned trial Court. Therefore, the judgment of the learned District Judge was set aside and that of the learned trial Court restored: This is vide judgment and decree dated 28‑6‑1986.

2. In the second appeal (CA. No. 1155 of 1990) the relevant facts are that the two respondents purchased land measuring 50 Kanals IS Marlas situate in Mauza Goharwala, District Bhakkar from one Liaqat Ali vide a consent decree dated 21‑5‑1978. The appellant filed a suit for pre‑emption being an owner in the estate and co‑sharer in the Khata. The respondents contested the same on the ground that they were tenants of the suit land at the time of its sale. Two relevant issues surviving were as follows:‑‑ (1) Whether the plaintiff has superior right of pre‑emption? (7) Whether defendants were tenants on the suit land? After the trial, finding the aforesaid issues in favour of the respondents and the fact of the decree in the first suit subject‑matter of CA. 1154/90 making the respondents owner in the estate and Khata, the learned trial Court dismissed the suit vide judgment and decree dated 29‑3‑1981. Appellant's appeal succeeded before the learned District Judge on 17‑5‑1983 by application of the doctrine of sinker. The respondents filed a revision petition in the Lahore High Court which was allowed by a learned Judge on the ground that neither sinker was pleaded nor any issue framed nor raised before the learned trial Court. It could not have been taken up by the learned District Judge. This is vide judgment and decree dated 28‑6‑1986.

3. Learned counsel for the plaintiff‑pre‑emptor, the appellant, vehemently contended that since the appellant was claiming preferential right of purchase and the respondents were tying to resist the same on the ground that they were the tenants of the land in dispute when it was shown that the a respondents/vendees had joined a stranger their claim was to fail under the doctrine of sinker notwithstanding that the plea of sinker was not taken in the plaint nor issue framed or raised before the learned trial Court.

4. We have heard the learned counsel for the appellant at length and perused the record with his assistance. In the first appeal (CA. 1154/90) one of the defendants/respondents appeared as D.W.2 and stated that meaning thereby that the defendants/respondents were in possession of the land prior to its sale as tenants. He was not cross- examined on the point at all. The contention of the learned counsel for the appellant is that the defendants/respondents themselves produced Khasra Girdawari Exh.D‑2 which only showed that two of the defendant/respondents were the tenants and not the third one. Therefore, this documentary evidence should have prevailed. Thus the respondents having joined a stranger doctrine of sinker would apply. Khasra Girdawaris carry no presumption of truth. It is established law. It is also common knowledge that a person may be a tenant and yet his name may not appear on the Khasra Girdawari. The fact whether a person is tenant or not is to be established by all the evidence on the record. Neither the appellant had stated in the plaint that the respondents were not the tenants of the land nor were they cross‑examined when one of them appeared as D.W.2 and said that they were tenants of the land prior to the sale. In these circumstances the finding of the learned trial Court that the appellant had no preferential right could not be set aside by the learned appellate Court on a ground which was never pleaded nor raised before the learned trial Court. The judgment of the learned Judge of the High Court passed in his revisional jurisdiction calls for no interference. In this view of the matter, the appeal fails and is dismissed.

5. As regards the second appeal (CA 1155/90) the learned trial Court after deciding the two issues against the appellant also referred to the decree in the suit whereunder the respondents had become owner in the estate and Khata and held that the respondents could successfully compete against the appellant. He, therefore, dismissed the suit. This argument would still hold true as regards this appeal, because the respondents having purchased land in the same estate and Khata, which purchase has been upheld in the first appeal they would be entitled to retain the land and the appellant would have no preferential right against them. In this view of the matter, this appeal too is dismissed.

6. In the circumstances the parties are left to bear their own costs. AA./M‑1793/S Appeals dismissed.