1994 PLP 579 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑The facts of this case are that Imtiaz Ahmad, respondent, sued the appellants for possession of the land in dispute, through exercise of right of pre‑emption. This right was rested on his being son of the vendor, namely, Muhammad Hayat. The appellants resisted the suit and asserted that the land comprised in their tenancy and thus they were possessed of superior right of pre‑emption. To substantiate their claim, among other documents, they tendered in evidence a copy of the Khasra Girdawari for the period from 29‑9‑1975 to 5‑10‑1975, for part of the land in dispute. They also examined two witnesses, namely, Nadir Khan and Sanaullah, to elucidate the contents of Khasra Girdawari. According to these witnesses, the appellants were in cultivating possession of the land in dispute. In the estimation of the trial Court, the oral evidence corroborated with the documentary evidence. Consequently, the suit was decreed vide judgment dated 25‑4‑1985. The First Appellate Court, however, discarded the respondent's oral evidence and found that by the documents produced by them the factum of tenancy was not proved. It further held that the respondent succeeded in establishing that he was son of the vendor. In view of these findings the judgment and decree of the trial Court were set aside, and the suit was decreed in favour of the respondent.

2. Against the judgment and decree of the First Appellate Court, the appellants preferred a second appeal in the High Court, which was dismissed on 7‑6‑1986. The reasons, which weighed with learned Single Judge in dismissing the second appeal, are:‑‑-- "The learned counsel for the appellants has not been able to point out the existence of the names of all the appellants as tenants in the revenue papers wherein only the name of Muhammad Abbas (without mentioning his parentage) followed by the word " Waghara" is found. It may be stated that Shan Muhammad, appellant‑1, is not the brother of appellants 2 to

4. His name is decidedly missing. In the circumstances the appellants, especially in the face of indivisibility of sale, cannot be said to have superior pre‑emptive, right vis‑a‑vis the respondent. The decision of the learned appellate Court in this behalf is unexceptionable." The respondent then sought leave to appeal from the judgment of the High Court and raised the following contentions, for consideration whereof leave was granted:‑‑ "In support of this petition for special leave to appeal learned counsel for the petitioners contends that the High Court and the Additional District Judge have ignored material evidence when they held that all the petitioners were not tenants in the land in dispute on the day of y the. impugned sale. He has referred us to the Khasra Girdawari where in the relevant column the following entry exists: Muhammad Abbas son of Muhammad Inayat etc. The word "etc‑" itself indicates that the land in dispute was being cultivated by more than one person. To explain to whom the word "etc." referred the petitioners examined the Local Lambardar (D.W.3) and Waryad (D.W.1). They both stated that the land in dispute was being cultivated by all the petitioners including Shan Muhammad. Neither the Local Lambardar (D.W.2) nor Waryad (D.W.1) was seriously cross-examined on his statement in this regard. That being the position the learned counsel contends that the High Court and the Additional District Judge erred in holding that Shan Muhammad had not been proved to be a tenant in the land in dispute at the relevant time."

3. On behalf of the appellants, the arguments advanced at the leave granting stage have been reiterated before us. We have examined the available record to evaluate these arguments. The entry appearing in Khasra Girdawari, which evidently makes reference to Khatoni No.23, is reproduced below: The copy of the Register Haqdaran for the year 1974‑75 relating to Khatoni No.23 is also on the record. The following entry figures in the "cultivation column" thereof: The entries in the Khasra Girdawari and Register Haqdaran reproduced above are to be read together. It will thus be seen that the word " Waghara " shown in Khasra Girdawari from which capital is sought to be made by the appellants, is referable to Nadir Khan and not to the appellants i.e. Shan Muhammad, Mushtaq Ahmad and Ashraf Iqbal (minor). It is noteworthy that in the plaint the name of appellant No.2 is described as Ghulam Abbas, son of Muhammad Hayat, whereas in the Register Haqdaran a person having different identity i.e. Muhammad Abbas s/o Qaim alongwith Nadir Khan is shown in cultivating possession of the land.

4. The learned Counsel for the appellants contends that appellant No.2, namely, Ghulam Abbas, is the actual 'tenant and entry in Register Haqdaran suffers from misdescription of name of the tenant. Even if it is so, the other three appellants, one of whom, namely, Shan Muhammad is not related to the other appellants, being not tenants, are thus not possessed of any right of pre emption. The sale is indivisible, appellant No.2 having joined strangers with him, the doctrine of sinker will apply. The approach of the High Court is correct both on merits as well as on legal plane, and thus does not call for interference by this Court. For all these reasons, this appeal having been found without merit is dismissed. The parties are left to bear their own costs. AA./S‑792/S. Appeal dismissed.