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Regular Second Appeal No. 184 of 1983, decided on 14th April, 1985.

(a) West Pakistan Land Revenue Act (XVII of 1987)--

---S. 52--Punjab Pre-emption Act (I of 1913), S. 15--Civil Procedure Code (V of 1908), S. 100--Second appeal--Entries in revenue record- Presumption of correctness--Entries in copy of Khasra Girdawari- Inconsistency with oral evidence--Consequences--Presumption of correctness ordinarily attached to entries in revenue record, held, could not be extended to entries in copy of Khasra Girdawari particularly when there was open conflict in oral evidence and entries in Khasra Girdawari.

Muhammad Aslam v. Khuda Dad 1982 S C M R 511; Haji v. Member, Board of Revenue 1984 C L C 1167 and Sher Azam. v. Mst. Tareena 1983 C L C. 3157 ref.

(b) Land Reforms Regulation, 1972 [M.L.R. 115]--

--Para. 25--Civil Procedure Code (V of 1908), S. 100--Tenant Right of pre-emption-- Non-production of sale-deed--Inference--Claim of physical possession at tuna of execution of sale-deed--Proof Vendees failed to mention their status as tenants fn sale-deed executed by vendor in their favour--Vendees claimed that they had taken possession of suit land at time of execution of sale-deed--Copy of sale-deed produced by pre=emptors was silent about claim of vendees--Vendees, held, failed to prove their claim of taking possession of suit land at time of execution of sale-deed as tenants--Non-production of sale-deed by vendees in their favour, held, raised adverse inference against them.

(c) Civil Procedure Code (V of 1908)--

---S..100--Punjab Pre-emption Act (I of 1913), S. 15--Second appeal-- Pre-emption suit--New plea in second appeal--Inconsistency with original' plea--Consequences--Appellants, held, could not be permitted to plead new case in second appeal before High Court if it was wholly inconsistent with their original plea taken before subordinate Courts.

S. Laqa Haider Zaidi for Appellants.

Abdul Aziz Qureshi for Respondent.

Date of hearing: 14th April, 1985.

This regular second appeal has arisen out' of a suit for possession through pre-emption land measuring R Kanals 18 Marlas situated in village Maghiana, Chak Noon, Tehsil and District Jhang, instituted by the respondent against the appellants claiming superior right of pre-emption on the basis of relationship with the vendor. The suit was dismissed by the learned trial Court on 13-7-1982 but the respondent's appeal against the judgment and decree of the learned trial Court was accepted by the learned District Judge, Jhang, on 17-5-1983. The vendees-appellants feeling aggrieved by the judgment and decree of the learned District Judge have filed the present appeal in this Court.

2. On 9-4-1979 Muhammad, Habibullah Khan respondent filed a suit to pre-empt the sale of land measuring 8 Kanals 18 Marlas, referred to above effected by his mother Mst. Ghulam Sakina in favour of the appellants through registered sale-deed, dated 10-4-1978 for an ostensible price of Rs.16,000. He contended that the land in question was purchased by the appellants for Rs.8,000 only, which was also the market value of the land and that the amount of Rs.16,000 was incorporated in the sale-deed as the sale price with a view to defeating his right of pre-emption. The suit was contested by the appellants inter alia on the ground that the respondent was estopped by his conduct to file the suit as the bargain of sale was struck through him and that they were entitled to purchase the land in preference to the respondent as they were cultivating the land as tenants at the time of its sale. They also controverted the respondent's allegation that the price of the suit land as mentioned in the sale-deed was not fixed in good faith nor was it paid. The pleadings of the parties gave rise to the following issues:-

(1) Whether the plaintiff is estopped to bring this suit by his own conduct

(2) Whether the plaintiff has a superior right of pre-emption as against the defendants

(3) Whether the sale price of the disputed land Rs.16,000 was fixed in good faith or actually paid

(4) If issue No. 3 is not proved, what was the actual market sale price, of the suit land at the time of the sale

(5) Relief.

3. Learned trial Court, on the basis of evidence produced before it by the parties, decided issue No. 1 against the appellants and issue No. 2, against the respondent. Issue No. 3 was decided in' favour of the appellants, while issue No. 4 was left undecided. As a result of its finding under issue No. 2, the respondent's suit was dismissed. The finding of the learned trial Court under the said issue was, however, reversed by the learned District Judge in appeal, and the respondent's suit was decreed.

4. Learned counsel for the appellants has contended that in view of the entries in the copy of Khasra Girdawari EXh. D.l, which were not challenged by the respondent during the trial, the learned District Judge was not justified in reversing the finding of the learned trial Court because it was established that the appellants were in possession of the disputed land as tenants at the time of sale. According to the learned counsel a presumption of correctness is attached to the entries in the Khasra Girdawari and in this connection he has referred to Muhammad Aslam v. Khuda Dad 1982 S C M R 511. He has contended that it was not open to the learned District Judge to question the correctness of the entries of the Khasra Girdawari (copy EXh.D.l) as it was only for the revenue authorities to revise or correct the said entries if the same were not correct. In support of this contention he has relied on Hap v. Member, Board of Revenue 1984 C L C 1167. Learned counsel for the appellants has further submitted that the fact, that the appellants were shown in possession of of the suit land as tenants while the other of the land was cultivated by one Zulfiqar also as tenant, was immaterial, because even then the appellants would be entitled to resist the respondent's claim of pre-emption to the extent of I share of the land comprising their tenancy. Sher Azam v. Mst. Tareena 1983 C L C Pesh. 3157 has been cited by the learned counsel in support of his above contention.

5. Learned counsel for the respondent, on the other hand, has submitted that no presumption of correctness is attached *to the entries in the copy of Khasra Girdawari Exh. D.1 as the appellants have not produced evidence to show that the entries were duly made by the Patwari. The reasons given by the learned District Judge for rejecting ,these entries are sound and supported by the appellants' own conduct. The learned District Judge was legally competent to judge the evidentiary value of the entries in the Khasra Girdawari and his finding is not open to question in. second appeal.

6. After carefully considering the arguments of the learned counsel for the parties and going through the record it has been found that the presumption of correctness ordinarily attached to the entries in the revenue record under section 52 of the Land Revenue Act, 1967 cannot be extended to the entries in the copy of Khasra Girdawari Exh.D.l. According to the entries in Exh.D.1 the suit land was in the cultivating possession of one Lal Khan as a tenant during Kharif 1976. During Rabi 1977 the land was occupied by Mohabbat as tenant. In the next crop i.e. Kharif 1977 the appellants and Zulfiqar were shown as tenants in equal shares. The sale-deed in favour of the appellants was executed on 10-4-1978. The oral evidence produced by the appellants is to the effect that at the time of sale they were in possession of the land as tenants. Statements of, Allah Ditta D.W.1 and Allah Bakhsh appellant D.W.2 may be referred to in this connection. But as noticed above the entries in the copy of Khasra Girdawari Exh.D.1 do not show them in exclusive possession of the land as tenants. Thus, there is apparent conflict in the oral evidence and the entries in the Khasra Girdawari. No attempt has been made to explain the above inconsistency. According to the appellants they had purchased the land. comprising their tenancy from the owner of the land. In view of their above status nobody could claim superior right of pre-emption against them. It would have been quite natural on their part to ask for the recital of their above status both in the agreement to sell and the sale-deed executed by the vendor in their favour but in the sale-deed, copy of which has been placed on the file as Exh.P.l. No reference to the above status of the appellants has been made. On the other hand it is stated that the physical possession of the land sold was delivered by the vendor to the appellants at the time of execution of the sale-deed. The learned District Judge has rightly inferred from the omission in the sale-deed about the possession of the vendees over the suit land prior to the execution of the sale-deed that the entries in the Khasra- Girdawari showing the appellants in possession of the land as tenants are not correct. The appellants did not produce the agreement to sell executed by Mst. Ghulam Sakina prior to the execution to the sale-deed, dated 10-4-1978 in their favour. The contents of the above documents would have certainly helped in resolving the controversy as to whether the appellants were holding the suit land as tenants when they entered into negotiations with Mst. Ghulam Sakina for its sale in their favour. Non-production of the above document by the appellants raises an adverse inference against them.

2. The appellant's case before the Courts below was that they were entitled to retain. the entire land as they were cultivating the land as tenants at the time of its sale in their favour. But the documentary evidence, on which reliance was placed, showed that they were not in possession of the entire land as Zulfiqar was also shown--in cultivating possession of the land alongwith them. For the first time at the time of hearing of the appeal the appellants have changed their stand as they now want to retain only J share in the land as the, other share was in the cultivating possession of Zulfiqar at the time of sale. The appellants cannot be permitted to plead a new case at this stage because it is wholly inconsistent with their original plea. Even otherwise their claim of tenancy in respect of share in the land is not established because of the suspicious nature of the entries in the Khasra Girdawari as noticed above.

In view of what has been stated above there is no force in this appeal, which is accordingly dismissed with costs.

H.B.T.

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