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Regular Second Appeal No. 54 of 1984, decided on 23rd February, 1986.

---S. 100--Land Reforms Regulation, 1972 (M.L.R.115), para. 25--Pre emption suit--'Ghair Mumkin Abadi'--Preferential right of tenant--'Ghair Mumkin Abadi land being part of tenancy, vendee/tenants, held, were entitled to claim preferential right on account of tenancy rights in respect of such land.

Amanat Khan v. Ghulam Sarwar P L D 1982 Lah. 179 ref.

---S. 100--Second appeal--Appellate jurisdiction, exercise of--Decree passed by Trial Court having been rightly set aside by First Appellate Court, High Court, held, would not interfere in second appeal to upset such decree in circumstances.

Mansurur Rahman Khan Afridi for Petitioner.

Malik Noor Muhammad Awan for Respondents Nos. 1 to 6, 10, 13 and 14.

Date of hearing: 23rd February, 1986.

This appeal was admitted to consider the question whether the decree to the extent of 2 Kanals 5 Marlas passed by the learned trial Court could legally be set aside by the learned Additional District Judge in appeal. The respondents/ vendees had purchased a share of the land in the joint Khata. The share so purchased was equivalent to 15 Kanals and 18 Marlas. The appellant filed suit for possession through pre-emption which was decreed to the extent of 2 Kanals and 5 Marlas only. The entire Khata measured 50 Kanals and 12 Marlas out of which land measuring 7 Kanals and 9 Marlas was 'Ghairmumkin Abadi'. The share of the vendees in the said 'Ghairmumkin Abadi' land on the basis of the disputed purchase was worked out as 2 Kanals and 5 Marlas. The vendees who were otherwise held to have preferential right being tenants of the land were held entitled to retain their share in the 'Ghairmumkin Abadi' land. The learned trial Court in these circumstances decreed the suit to the extent of 2 Kanals a6id 5 Marlas. Both the parties challenged this decree by filing separate appeals. The learned Additional District Judge vide the impugned judgment and decree accepted the appeal of the vendees and dismissed that of the appellants and resultantly the suit was dismissed in toto. The appellants who are the plaintiffs then filed the present second appeal and claimed that the decree to the extent of 2 Kanals and 5 Marlas passed by the learned trial Court could not legally be interfered with by the learned first appellate Court. It was contended that the respondents-vendees were not entitled to claim preferential right on account of tenancy as against the appellants in respect of 'Ghairmumkin Abadi' land. It is, however, not disputed that the respondent-vendees were the tenants of the entire Khata and the 'Ghairmumkin Abadi' land formed part of the said tenancy. The tenancy of the respondents as such admittedly comprised the 'Ghairmumkin Abadi' land as well. In a similar situation a learned judge of this Court in Amanat Khan v. Ghulam Sarwar P L D 1982 Lah. 179 has held that the land in dispute including 'Ghairmumkin' part of it would be deemed to be comprised in the tenancy for the purpose of sub-para. (3) of paragraph 25 of the Land Reforms Regulation, 1972 and as such the tenants had the first right of pre-emption qua the suit land. In the instant case also the land comprised in the tenancy of the respondents included the 'Ghairmumkin Abadi' land as well. 'The learned Additional District Judge was, therefore, right in dismissing the suit in toto. No justification is, therefore, made out for interference in the impugned judgment and decree in this second appeal. The appeal, therefore, fails and is dismissed with costs.

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