SULMAN Versus UMAR DIN

This regular second appeal is directed against the judgment and decree dated the 16th of October, 1977, passed by the learned Additional District Judge Lyallpur (Faisalabad). The facts necessary for the purpose of this appeal, briefly stated, are that Umar Din, respondent No. 1, instituted a suit against the appellant Suleman and Muhammad Zubair respondent No. 2, for possession through pre-emption of sale of land measuring 6 Kanals and 8 Marlas comprised of Killa No. 15 of Sq. No. 15 and part of Killa No. 14 situate in Chak No. 49/J.B. Tehsil and District. Layllpur (Faisalabad), orally made by respondent No. 2 in favour of the appellant for a sum of Rs. 10,000. The mutation of this oral sale was sanctioned on 13th of January, 1974. The superior right of pre-emption was claimed by the respondent/plaintiff on the basis of being tenant of the suit land and being a co-sharer. The suit was resisted by the appellant/defendant and on the divergent pleadings of the parties the following four issues were framed:--

(1) Whether the plaintiff has superior right of pre-emption qua the defendants?

(2) Whether the suit has been improperly valued for the purposes of court fee and jurisdiction?

(3) Whether the plaintiff has waived his right of pre-emption?

(4) Relief.

The learned trial Court on the conclusion of the trial found issues Nos. 1 and 3 against the respondent/plaintiff whilst issue No. 2 was found against the appellant/defendant. 1n view of the findings on issues Nos. 1 and 3 the learned trial Court dismissed the suit of respondent No.l by its judgment and decree dated the 23rd of June, 1975.

2. Feeling aggrieved by this judgment and decree respondent No.1 preferred an appeal before the Additional District Judge Lyallpur (Faisalabad), who accepted the appeal by his judgment dated 16th of October, 1977, and decreed the suit of the respondent/plaintiff. Hence this Regular Second Appeal by the appellant/defendant.

3. The learned counsel for the appellant only contended that the documents Exhs. P-2-and P-4 had been correctly read by the learned trial Court to record the finding that respondent No. 1 was not a tenant of the land in dispute and that the lower Appellate Court by misreading the aforementioned documents has reversed the findings of the trial Court on issues Nos. 1 and 3. The learned counsel in support of his above contention referred to Ex. D-2, the Khasra Girdawari, produced by the appellant before the trial Court to show that respondent No. 1 was a trespasser and not a tenant on the land in dispute.

4. On the contrary the learned counsel for respondent No. 1 submitted that findings of the first Appellate Court are based on cogent reasons and have been arrived at after due appraisal of the evidence on the record including the documents Exhs. P-2 and P-4. He submitted that the vendor/defendant having himself filed his claim for recovery of `Hissa Batai' for the period Kharif 1972 to Rabi 1974 in respect of the land in dispute had admitted respondent No'. 1 to be a tenant on the land in dispute. The reading of Ex. P-2 by the first Appellate Court was absolutely justified and calls for no interference.

5. Having given consideration to the controversy I find that the contention raised by the learned counsel for the appellant is not well-founded. I am of the view that the first Appellate Court has correctly read the aforementioned Exhs. P-2 and P-4. Ex. P-2, which is a copy of the Khasra Girdawari, clearly shows that respondent No. 1 was in cultivating possession of Killa No. 14/2 from Kharif 1971 to Kharif 1973, whilst as regards Killa No. 15, he is shown as cultivating the said Killa in Kharif 1973 in consideration of an annual rent of Rs. 250. Ex. D-1 supports the above position regarding the cultivation of Killa No. 14/2 and also shows that this was under the cultivating possession of Umar Din, respondent No. 1, even in Rabi 1974. As regards Killa No. 15, Ex. D-1 affirms the position upto Kharif 1973, but suddenly in Rabi 1974 Umar Din has been shown as a trespasser. Now this averment of Umar Din being a trespasser is prefixed with reference to the mutation of sale in favour of Suleman appellant and presumably made on the basis of factum of sale and not with reference to actual position of possession of Umar Din under Muhammad Zubair. The lower Appellate Court has in. the attendant circumstances and with reference to the oral evidence on record as also documents aforementioned rightly come to the conclusion that the admitted position being that Umar Din, respondent No. 1, was in actual cultivating possession of the land in dispute could at best be held to be a lessee holding over after the expiry of lease. As regards Killa No. 15, it has also been rightly held by the first Appellate Court that where the lessee cultivates the land himself he is for all intents and purposes a tenant. It may also be observed that the document Ex. P-4 conclusively shows that Umar Din was always treated as a tenant by Muhammad Zubair. That being so, no valid exception can be raised against the findings recorded by the first Appellate Court on issues Nos. 1 and 3. The findings being based on proper appreciation of the record cannot be interfered with in a second appeal.

6. Before parting, I may also observe that at the time of preliminary hearing of the appeal it was urged on behalf of the appellant that no appeal was preferred against the decree of the trial Court but appeal was only against the order and thus the appeal before the first Appellate Court was not competent. I have perused the record of the first Appellate Court. I find that though in the memorandum of appeal the word "order" has been written in place of decree, the same appears to be a typographical error only. The memorandum of appeal is accompanied by the judgment and decree and, therefore, it is obvious that the decree had been impugned holding otherwise would amount to making fetish of a technically.

7. In view of the foregoing discussion, I find no merit in this appeal which is accordingly dismissed with costs.

M.A.K./3420/L Appeal dismissed.