A sale of agricultural land is not pre-emptible if the defendants were in possession of the land as tenants under the vendor immediately prior to the sale.

1. This is a second appeal by the defendants who are brothers inter se and has arisen from a suit for possession of agricultural land measuring 32 Kanals by pre-emption. The land in dispute was sold by Ladha Ram, the paternal grandfather of the plaintiff-respondent, in favour of the defendants on the 1st of June, 1955 for Rs.4,000. The plaintiff sought to pre-empt the sale on the ground of his relationship with the vendor. The suit was resisted by the defendants with the plea that they were occupying the land as tenants under the vendor on the date of the sale and that, therefore, the sale could not be pre-empted. This plea found favour with the trial Court but was negatived in appeal by Shri. A. N. Aggarwal, Additional District Judge, Hissar, who rejected as false the relevant entries in khasra girdawari Exhibit D-2, according to which the defendants were in possession of the land in dispute as tenants under the vendor during the agricultural year 1964-65.

2. The case of the appellants before me is that the learned Additional District Judge has misinterpreted the evidence and drawn wrong inferences therefrom and that on a correct appreciation thereof the khasra girdawari entries must be held to be fully reliable. After hearing learned counsel for the parties, I am of the opinion that the contention raised by the learned counsel for the appellants merits acceptance.

3. The land in dispute is comprised of Killas Nos. 5, 6, 15 and 16 of rectangle No. 289. According to the entries in khasra girdawari Exhibit D-2, Killa Nos. 5 and 6 were in possession of one Kirta as a tenant under the vendor while the other two Killa numbers were in the cultivating possession of the vendor himself prior to the agricultural year 1964-65. For the Kharif crop of that year the following entry was made in respect of all the four Killas on the 6th November, 1964:

"Kharif mein kasht Khiali Pokhar Pisran Puran ba hissa braber ghair marusian sakan deh batai 1/3 mai neera billa kharch zabani Khiali muzara."

This entry was repeated for the next crop, i.e., Rabi 1965 on the 24th of March, 1965. However, on the 14th of November, 1965, i.e., about 5 1/2 months after the sale, the entry made for Kharif 1965 was:

"Kharif self cultivated by the tenants as owners--Khiali Ram and Pokhar Ram * * *."

This entry was repeated for the next crop, i.e., Rabi 1966 on the 8th of April, 1966.

4 The learned Additional District Judge rejected the entries made in the Khasra girdawari for the year 1964-65 to be unreliable for the reasons enumerated below.

(i) According to Bhagtu (D.W. 3) who was admittedly cultivating the land in dispute for more than a decade as a tenant under Ladha Ram, the defendants started cultivating the land after the sale in their favour.

(ii) There is a recital in sale deed Exhibit D-3 that the vendor had delivered possession of the land in dispute at site to the vendees who had obtained the same. If the defendants had been in possession of the land earlier to the sale the recital would not find a place in the sale deed.

(iii) The relevant daily diary maintained by the Patwari and the lease deed admitted by Khiali Ram defendant to have been executed by him in favour of Ladha Ram in or about the year 1961 (when the tenancy in question commenced, according to him) had not been produced.

(iv) The Patwari who made the khasra girdawari and Ladha Ram vendor had not been brought into the witness-box in support of the entries in Khasra girdawari Exhibit D-2.

(v) The entries in khasra girdawari Exhibit D-2 for the year 1964-65 indicate that they were made at the instance of Khiali Ram which circumstance deprives those entries of all value.

(vi) Khiali Ram defendant has stated in the witness-box that he had been cultivating the land for six years earlier, while according to khasra girdawari Exhibit D-2 the period was only two years.

5. In my opinion the learned Additional District Judge has gone completely wrong in assessing the worth of khasra girdawari