FATEH KHAN vs ABDUL RAHMAN

ORDER

MIAN BURHANUDDIN KHAN, J.-Fateh Khan, petitioner, seeks leave to appeal against the judgment of the learned Lahore High Court, Rawalpindi Bench, dated 5-10-1981 whereby the Civil Revision No. 123/1981 was dismissed.

2. It is mentioned that Khasra No. 616, in all, measures 383 kanals 5 marlas while Khasra No. 617 measures 17 kanals and 12 marlas in village Thatti Noor Ahmad Shah, Tehsil Pindi Gheb. The petitioner purchased 1/4 area-about 109 kanals and 4 marlas in Khasras Nos. 616 and 617 Khewat/ Khatoni No. 40/136.

3. The respondent filed a suit for possession by pre-emption on the ground of being a co-sharer in the Khata No. 40/136 consisting of Khasras Nos. 616 and 617. The Civil Judge, vide his judgment dated 15-11-1980, decreed the suit to the extent of 4 kanals and 8 marlas in Khasra No. 617 and dismissed the rest of the suit. On appeal by the respondent- pre-emptor the learned District Judge, Attock, vide his judgment dated 22-2-1981 modified the judgment and decree, holding that the plaintiff (now respondent) is entitled to a decree for possession by pre-emption to the extent of 93 kanals and 3 mamas out of the suit land measuring 100 kanals and 4 marlas bearing Khasra No. 617 against the defendant, and dismissed the suit to the extent of 1/4th out of the culturable portion of Khasra No. 616 and held on page 4 of his judgment "Consequently he stood defeated to the extent of 7 kanals and 10 marlas out of the culturable portion of Khasra No. 616 measuring 30 kanals in possession of the defendant-respondent (now petitioner) as tenant." and held the pre-emptor-respondent to be co-sharer in the whole Khata and decreed his suit.th

3. Against the judgment and decree of the learned District Judge the petitioner filed a Revision in the Lahore High Court and a learned Single Judge held the petitioner to be entitled to 1/4th share in Khasra No. 616 and passed a decree in favour of the petitioner to the extent of 7 kanals and 19 marlas. As regards Khasra No. 617 the suit was dismissed vide the impugned judgment.

4. Learned counsel for the petitioner submitted that the petitioner being tenant of 30 kanals in the suit land bearing Khasra No. 616 having total are of 385 kanals and 3 marlas and being in cultivating possession of 30 kanals as tenant-at-will since long, has a superior right as against the respondent under paragraphs 25 (3)(d) of the Land Reforms Regulation, 1972 and he is entitled to a decree for 30 kanals out of Khasra No. 616.

5. This argument is devoid of any legal force. It is admitted that the petitioner was tenant-at-will of 30 kanals of land bearing Khasra No. 616 which was pre-empted by the respondent, he purchased 1/4th and to that extent his right is protected under paragraph 25(3)(d) of the aforesaid Regula-- tions. Therefore, he would be entitled to 1 /4th of total area under his cultivation which comes to 7 kanals and 10 marlas. Thus, this petition has no merit, and is, therefore, dismissed.