GULDAR KHAN vs ISA KHAN by his Legal Heirs and others

' ABDUL SHAKURUL SALAM, J.---This appeal by leave arises in the following circumstances: ' As a result of Court decree dated 16-7-1973 of the Senior Civil Judge, Bannu, area measuring 357 Kanals 18-3/4 Marlas was transferred in the name of Arif Khan, 59 Kanals 13-1/8 Marlas in favour of Ajab Khan and 59 Kanals 13-1/8 in favour of Gul Mir. Before the expiry of the period of limitation for pre-emption, Arif Khan transferred an area of 50 Kanals to Guldar Khan, the appellant. Isa Khan (since deceased and represenated by his heirs, the respondents) pre-empted the entire suit land measuring 477 Kanals 4 Marlas. Two other persons also filed pre-emption suit. All were tried together. The appellant resisted the suit to the extent of sale in his favour of 50 Kanals on the ground that he had superior right being a tenant of the land in dispute. The learned trial Court decreed the suit of Isa Khan except to the extent of 50 Kanals of which the appellant was found to have better right being a tenant thereof. This is vide judgment and decree dated 8-3-1976. All the three preemptors filed appeals which were dismissed by the learned District Judge Bannu vide judmgent and decree dated 18-3-1975. Isa Khan filed a revision petition which has been allowed by a learned Judge of the Peshawar High Court vide order dated 14-4-1985. Guldar Khan appellant filed petition for leave to appeal and it was contended "that the learned High Court Judge fell in error in arriving at the conclusion and setting aside the concurrent findings of the Courts below without pointing out any error or defect in the procedure; that the case in hand was not a case of misreading of any document and the learned Judge reverted to the Khasra Girdawari to which no presumption of truth can be attached". It was "further contended that it has been proved on the ' record that the defendant/petitioner was the tenant on the disputed land. Isa Khan the plaintiff and the Patwari ilalqa appearing as the witness of Isa Khan have not controverted the position of Guldar petitioner/defendant to be a tenant of the suit land which is a question of fact concurrently arrived at by the two Courts below and therefore, the case called for no interference by the learned High Court Judge". It was observed that "we have considered the contentions raised by the learned counsel and gone through the record of the case and find that Isa Khan respondent had admitted in the cross-examination before the learned trial Court that Guldar petitioner was a tenant of 50 Kanals of the land in dispute. Guldar himself had appeared and stated that he was cultivating the suit land to the extent of 50 Kanals as a tenant since the last 20 years and the varacity of his statement was neither questioned nor had he been questioned, regarding his parentage". To consider the contentions leave was granted on.18-1-1986.

2. We have heard the learned counsel for the parties and perused the record. The finding that the appellant was a tenant of 50 Kanals of land was first recorded by the trial Court and affirmed on first appeal. Isa Khan the plaintiff-respondent had himself admitted that the appellant was tenant of 50 Kanals of the suit land. So also was stated by his witness the Halqa Patwari. In these circumstances, there was no justification to interfere in the concurrent finding of fact by the two Courts below in the revisional jurisdiction. In this view of the matter, we allow the appeal and set aside the order of the High Court. However, we leave the parties to bear their own costs.