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Civil Petitions Nos. 58‑P and 59‑P of 1983, decided on 21st November, 1983.

(On appeal from the judgment and order of the Peshawar High Court Peshawar, dated 18th December, 1982 passed in Civil Revisions Nos. 386 an 387 of 1976).

--‑‑Art. 185 (3)‑Petition for leave to appeal Plea not raised before any of Courts below Held, cannot be considered in leave petition‑ Leave to appeal refused.

Z. Mahfuz Khan, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing : 21st November, 1983.

As the two petitions mentioned hereinabove arise out of a common judgment of Peshawar High Court, they are being disposed of by this consolidated order. These petitions for special leave to appeal have been brought to challenge the judgment dated 18‑12‑1982 where by the learned Acting Chief Justice of the Peshawar High Court, Peshawar refused to interfere with the decree passed by the learned District Judge, Kohat and dismissed the revision applications filed by the petitioners.

2. The facts are that the petitioners brought a pre‑emption suit challeng ing the sale transaction of the disputed land in favour of Sher Ilyas, respondent on the ground that they were tenants of the said land and, therefore, they had a preferential right to purchase the land under MLR‑115. The respondent dented their claim and contended that he was entitled to the right of preemption on the basis of his being co‑sharer in the land as well as being an owner of contiguous property. The learned Senior Civil Judge, Kohat decreed the suit oil the payment of Rs. 900 vide his judgment dated I6‑3‑1976, Oil the ground that they were tenants‑at‑will continoualy since 1970. This decree, however, was set aside, on appeal by the respondent, by the learned District Judge, Kohat who dismissed the suit of the petitioners by his judgment dated 15‑9‑1976 on the view taken by him that the documentary evidence con sisting of Fard of Jamabandi 1972‑73 the suit land was shown in possession of the owners and that in the settlement Jamabandi there is no mention about the alleged tenancy of the petitioner over the land in dispute. The learned District Judge did not accept the entries in the Khasra Girdawari relied upon by the petitioners since presumption of truth attaches to the revenue record prepared during the settlement operations. He further referred to the pro ceedings taken by the Tehsildar, Kohat for the correction of the entries made it, the Khasra Girdawari which revealed these entries in the names of the petitioners were found to be wrong and were, therefore, corrected vide Exh. D/‑W 1/2, which fact was totally ignored by the trial Court.

3. Being aggrieved with the decision of the learned District Judge, the petitioners, filed two separate Civil Revisions which were dismissed by the learned Acting Chief Justice by the impugned judgment. In support of these petitioners the learned counsel reiterated his contention that the petitioners had established by their evidence that they were tenants in possession of the land at the relevant time and were, therefore, entitled to assert their superior right of pre‑emption under MLR‑115. However, since this is a question of fact and the learned counsel concedes that no presumption of corrections attached to the entries made in the Khasra Girdawari, we are unable to accept his contention since the finding of the Courts of fact below is based on the superior official record contained in the Jamabandi record which does not show them as tenants. Learned counsel further submitted that the respondent had perchased 42/360 shares equivalent to 2 Kanals 1 Maria through Mutation Marla3 attested on 26‑I 1‑1972 out of Khasra No. 61 measuring 17 Kanals 14 back o situated in Mahal Chaghtoo, Tehsil and District Kohat. On the f the mutation according to him, the land purchased by the respondent was separated by metes and bounds and a Tatima was prepared which was given dent had thereby khasra No. 61/1. On the basis of these facts he contended that the respondent had thereby ceased to be co-sharer in the remaining area of the pleas wt number and could not, therefore, claim right of pre‑emption. This me, as, however, not raised before any of the Courts below as there is no mention thereof in the judgments placed on record. In any case no such contention having been raised before the High Court, we are inclined to consider the same at this stage.

4. For the foregoing reasons we find no force in these petitions which accordingly dismissed.

S.Q. Petitions dismissed

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