MUSA Versus ABDULLAH

Musa appellant and Haji Mandos respondent No.2 were the joint vendees of 78 kanals 13 marlas of land belonging to Mst. Sakina and Mst. Suryyia. This sale was pre‑empted by Abdullah respondent No. 1 claiming a superior right of pre‑emption over the vendees being an owner in the estate. The trial Court vide its judgment and decree of 19‑10‑1977 found that the vendees were not tenants in the estate as claimed by them and that the pre‑emptor was an owner in the estate. It however decreed the suit only for Rs. 23,000. In appeal the decree was maintained except for sale price which was raised to Rs. 50,000. Musa appellant one of the vendees has come in second appeal in the High Court.

2. The learned counsel has argued that the two Courts below have not read the record correctly inasmuch as they have decided to exclude the orders passed by the Collector on 26‑5‑1977 ordering the correction of Khasra Girdawri and incorporating the names of the appellants in the land in question. He has also contended that the requirements of sections 44 and 45 of the Land Revenue Act having been complied with, the orders of the Collector of 26‑5‑1976, were relevant piece of evidence and could not be excluded from consideration.

3. Admittedly the application before the Collector was moved during the: pendency of the suit and the correction was made by the Collector without associating the pre‑emptor with the proceedings. Such a practice has not been approved of by the Courts. The case reported as 1980 C L C 520 may be referred to. It may also be observed that the correction was made by the Collector on the application of the vendees against one Abdul Aziz Khan. Abdul Aziz Khan appeared before the Tehsildar as well as before the District Collector and stated that his name had erroneously been mentioned as a tenant in the Khasra Girdawari and that he had no objection if the correction was made. As a matter, of fact Abdul Aziz Khan has never been mentioned as a tenant as is evident from the Khasra Girdawri (P. 10). The consent given by Abdul Aziz Khan in the application for correction of Khasra Girdawri, therefore, was not only collusive but fraudulent. The Courts below were, therefore, justified in excluding the order of the Collector of 26‑5‑1976. The objection of the appellant that there has been misreading of the record is, therefore, not established.

4. The learned counsel for the appellant has also argued that the land in question was state land and only occupancy rights were purchased by the appellant. He is of the view that without the permission of the Commissioner under section 19 of the Colonization of Government Lands Act, the decree in favour of respondent No. 1 was not executable. There is no merit in this argument. Under the Punjab Alienation of Lands Act land includes occupancy rights and the; sale of the occupancy rights is, therefore pre-emption. If the appellant is serious about his objection this may negate the sale itself but the learned counsel for the appellant is not prepared to go to that extent. In my view this objection too is without any merit.

5. In view of the above considerations, the appeal is dismissed with costs.

M.Y.H./3356/L Appeal dismissed.