SHAD MUHAMMAD vs KHAN POOR

1. ' MUHAMMAD AFZAL ZULLAH, J.-This appeal through leave of this Court is directed against judgment, dated 20-4-1980 of the Peshawar High Court: whereby appellant's civil revision seeking dismissal of respondent's pre-emption suit on the ground that the appellant vendee was tenant on a part of the land, was dismissed.

2. ' The facts relevant for this appeal are that land in two Khasra Nos. 1059 and 1060 was purchased by the appellant. The respondent sued for pre-emption on grounds of co-sharers-ship and contiguity. The appellant pleaded defence of tenancy on a part of land, but failed throughout on this point and the suit stood decreed against him. Leave to appeal was granted to examine the conflict of authority in Shamsur Rehman v. Hukmat Khan and others (1) and Shad Muhammad v.

3. Khanpur (2) on the question whether in case of conflict the entry in the column of Cultivation of Jamabandi should not be given preference over the Lagan column thereof. In this case regarding a part of Khasra No, 1959 the appellant was shown as tenant in the cultivation column, the Lagan column showed as if he was a mortgagee without payment of rent. The appellant's case was that the former entry would prevail and that being so he having preferential claim on part of land, the suit for pre-emption regarding the entire land would fail.

4. ' The point of law on which leave was granted stands resolved in the unreported judgment of this Court in Mehrab Shah (through his legal heirs) v. Shah Zaman and others (Civil Appeal No, 52-P of 1972, decided on 20-4-1980). The view that "entries of the column of Lagan, otherwise not corroborated by any evidence cannot take precedence over the column of cultivation" was upheld.

5. It was also held that the party relying on the Lagan column as against the cultivation column would have to produce evidence in support of its plea.

6. ' In the present case the respondent relied on the Lagan column entry to the effect that the appellant was not paying rent, on account of a mortgage. This stands contradicted by the cultivation column where he is mentioned as tenant, as also, indirectly by the ownership column of the Jamabandi where other persons are mentioned as mortgagees but not the appellant. The explanation of the learned counsel for the respondent is that although the mortgage in favour of the appellant, indicated obliquely in the Lagan column, had taken place, the mutation was not yet sanctioned when the relevant jamabandi was prepared. But he failed to produce any evidence to support of this. It was his burden as held in Mehrab Shah's case to adduce such evidence. The reliance of similar entry in the Khasra Girdawari as in Lagan column of jamabandi, is of no avail to the respondent; because it cannot be given preference to the above referred two columns of the jamabandi. Similarly there is no force- in the argument of the learned counsel for the respondent that Lagan column does not show payment of any Lagan, therefore, the appellant even if mentioned as tenant in the cultivation column was not a 'tenant' as defined in the relevant law, which required payment of rent unless contracted otherwise. Firstly it is based on the entry in the Lagan column which is contradicted by the cultivation column and secondly non-payment of rent as shown in the Lagan column by itself would not change the character as tenant of the appellant if shown so in the cultivation column.

7. ' In the light of the foregoing discussion the impugned judgment of the High Court is set aside and the case remanded to the trial Court for affording opportunity to the respondent to adduce independent evidence to support and corroborate the entry relied upon by him in the Lagan

(1) PLD 1967 Pesh 304 (2) PLD 1979 Pesh 93 column, so as to rebut the presumption raised in support of the appellant's plea, by the entry in the cultivation column that he was a tenant. Thereafter, the appellant shall also be afforded an opportunity of adducing his other evidence if any in this behalf. This done the suit shall be decided afresh in so far as the right of pre-emption is concerned. The previous decision on issue of pre- emption money, however shall stand. There shall be no order as to costs.