RIAZ AHMAD vs UM E SALMA

1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the defendant vendee to examine whether his claim to be a tenant of the land successfully pre-empted by the respondent had been duly examined in accordance with law by the Lahore High Court in its judgment, dated 14-2-1981 while dismissing in limine his Regular Second Appeal.

2. By a registered sale-deed, dated 18-1-1977 the appellant purchased 36 Kanals 8 Marlas of land in village Chakwal ostensibly for Rs.18,300. The respondent, a minor daughter of one of the vendors and related closely to the others, instituted a civil suit on 3-1-1978 claiming a superior right of pre- emption and fixing the price actually paid at Rs.3,600. The appellant contested the suit and claimed a superior right of pre-emption on the ground that he was a tenant of the land. The contest between the parties centred round the superiority of the right of pre-emption of the respondent as the price fixed and paid was conceded by pre-emptor. The relationship of the pre- emptor with the vendors was not disputed. The claim of the appellant to be a tenant and on that account to have a superior right of pre-emption was not considered by any of the Courts. The suit was decreed by the trial Court. The appeal was dismissed by the District Judge and the second appeal by the High Court.

3. The learned counsel for the appellant based the case of superior right of pre-emption of the appellant on .The ground that in the Khasra Girdawari of Rabi 1977 he was recorded in occupation of the land and this possession should be taken back to the sowing of the crop in October- November 1976 and his possession on the land prior to the sale should be held established.

4. On examining the copy of the Khasra Girdawari on which reliance is placed by the learned counsel we find that though entry itself shows the possession of the appellant over the land but the nature of his possession is shown as a vendee and in no other capacity. This entry disproves his case instead of proving it. His further contention that a part of the entry, to the extent it records the possession of the appellant should be accepted but that part which shows him to be a vendee should be rejected and instead his possession should be considered to be that of a tenant is untenable. There is no basis for rejecting a part of the entry that part which finds due corroboration from the sale deed itself. There is additionally no basis for substituting his possession from that of a vendee to that of a tenant. The presumption on which the learned counsel relies, namely, of having himself cultivated the land because in the Rabi Girdawari he was found in cultivating possession of the land is actually against the law laid down by this Court in Ghulam Hassan and others v . Serfraz Khan and others PLD 1956 SC (Pak) 309. It was held therein that as "with regard to the revenue records they are presumed to relate to the state of things prevailing on the date on which they are prepared". No question, therefore, of ante-dating the possession or changing its nature arises.

5. It is clear to us that not only the appellant has not been able to establish his possession as a tenant over the land prior to the sale, he did not, it appears, press his case on that score before the Courts though he had taken such a ground in his written statement because all the judgments are silent with regard to it. We find no merit and the appeal is dismissed with costs.