SHAFI MUHAMMAD Versus IMAM DIN

SAAD SAOOD JAN, J ‑‑‑This is an appeal by special leave from the judgment dated 21‑6‑1989 of the Lahore High Court which affirmed the judgment of the Additional District Judge, Multan, in a pre‑emption suit.

2. The property in dispute in this appeal is agricultural land measuring 30 Kanals and 16 Marlas, situate in village Rajanpur of Tehsil Lodhran. It was owned by one Muhammad Yasin. By an oral transaction Muhammad Yasin sold the land to the appellant. The sale was evidenced by a mutation attested on 17‑1‑1970. The respondent who was a collateral of Muhammad Yasin filed a suit for pre‑emption on 8‑1‑1971. The suit was resisted by the appellant on a number of grounds. The ground which alone is now relevant related to his denial that the respondent had any superior right. The trial Court found that the respondent was a collateral of Muhammad Yasin as both had a common paternal ‑grandfather and that the appellant was not related to the vendor at all. Accordingly, it held that the respondent possessed the superior right to acquire the land in dispute. The appellant filed an appeal in the District Court. The Additional District Judge affirmed the finding of the trial Court on the issue of relationship between the vendor and the respondent and dismissed the appeal. The appellant then filed a second appeal in the High Court which met the same fate. He has now come in appeal to this Court.

3. In support of this appeal it is contended that at the time of the sale the appellant was cultivating the land in dispute as tenant; while the suit was still pending in the trial Court Martial Law Regulation 115 came into force; paragraph 25 of the Regulation conferred upon the tenant the first right of pre emption; consequently, on the day when the decree was passed in favour of the respondent he could not be said to be enjoying a superior right vis‑a‑vis the appellant who after the promulgation of the said Regulation stood vested with the first right of pre‑emption.

4. It is to be noticed that on the promulgation of the Martial Law Regulation 115 the appellant did not care to amend his written statement to take up the plea that the respondent could no longer be regarded as possessing the superior right. Thus, the question whether at the time of the sale he was cultivating the land as tenant was not enquired into. However that may be, his assertion that he was cultivating the land as tenant at the time of the sale is contrary to the statement he made at the trial when he said:

Qabza zabani tur per dya ghya tha. Hal na chalaya ghya tha and further:

Qabza arazi suda kay rose hi dey dya ghya tha

From these statements it is quite clear that he was not in possession of the land in dispute as tenant before the bargain for sale was struck for if he had been in possession of the land as tenant before the sale he would have not omitted to mention this fact. We are therefore unable to accept the contention of the appellant that as tenant of the land in dispute he could defeat the right of pre‑emption claimed by the respondent. This appeal is without any merit and is hereby dismissed with no order as to costs.

AA./S‑763/S Appeal dismissed.