L. N. MITTAL, J. (ORAL)

This is second appeal by plaintiff-Piara Singh who was successful in the trial court but has been non-suited by the lower appellate Court.

Suit land measuring 4 kanals out of 11 kanals comprised of khasra Nos.405/1(3-0) and 406 (8-0) was sold by defendants No.1 and 2 (proforma respondents No.2 and 3) (since given up in the trial Court) to Baldev Singh-defendant No.3/respondent No.1 vide registered sale deed dated 24.05.2002 for consideration of `1,25,000/-. Plaintiff filed preemption suit to preempt the said sale on the ground that he is in cultivating possession of the entire 11 kanals land including 4 kanals suit land as tenant on 1/3 batai since long.

Defendant No.3 vendee contested the suit and denied the tenancy of the plaintiff and claimed to be owner in possession of the suit land.

Learned trial Court decreed the plaintiff’s suit for preemption, but in first appeal preferred by defendant No.3 vendee, lower appellate Court has dismissed the suit of the plaintiff who has, therefore, filed this second appeal.

I have heard learned counsel for the parties and perused the case file including files of the Courts below.

Counsel for the appellant contended that on the basis of documentary evidence including revenue record, order of Assistant Collector Second Grade regarding correction of khasra girdawari as well as judgment in the previous litigation, plaintiff-appellant is proved to be tenant over the suit land.

On the other hand, counsel for respondent No.1 vendee contended that there is no lease deed or rent deed or rent receipts regarding payment of rent to prove alleged tenancy of the plaintiff. It was pointed out that the plaintiff has withheld the rent receipts which were allegedly in his possession. It was also submitted that the matter of correction of khasra girdawari is pending before Financial Commissioner and has not attained finality. It was also argued that mere entry of gair morusi tenancy in the revenue record does not establish the tenancy of the plaintiff over the suit land. Reliance in support of these Contentions has been placed on various judgment namely Om Parkash versus Chaudhri Ram, 2010(2) LAR 498; Ram Chand Premi versus Nawab Kaur, 2004(2) Civil Court Cases 188; Smt. Saroj and others versus Sardari Lal and others, 2009(4) RCR (Civil), 898 and Gurcharan Singh versus Kehar Singh, 1996 PLJ 327 of this Court and Labh Singh & others versus Bachan Singh, 2008(1) LAR, 599 of Hon’ble Supreme Court. Counsel for vendee also referred to judgment Exhibit P-18 passed by Additional District Judge in an earlier lis.

I have carefully considered the aforesaid contentions.

Revenue entries in jamabandi for 2001-02 and khasra girdawari since 92-93 till the year 2005-06 i.e. till after the filing of the suit depict the plaintiff to be in possession of the entire 11 kanals land including the suit land as tenant on payment of 1/3rd batai. There is also order of Assistant Collector dated 31.07.1996 Exhibit P-14 thereby ordering correction of khasra girdawari of the aforesaid land measuring 11 kanals including suit land in favour of the plaintiff as tenant on 1/3rd batai since khariff 92 crop onwards. Defendant No.1 and 2 (vendors/predecessors of defendant No.3/vendee) were party to the said order. In addition to it, there is judgment dated 25.03.1994 Exhibit P17 wherein also it was held that defendant No.5-Gainda Singh father of the vendee was not in possession of the suit land.

From the documentary evidence on record, it is fully established that plaintiff is in possession of the suit land as tenant on payment of 1/3rd batai.

Lower appellate Court observed that in column of rent in jamabandi, it is not mentioned as to what rent was payable by the plaintiff-tenant. This observation of the lower appellate Court is factually incorrect because it has been specifically mentioned in the column of rent in jamabandi that plaintiff was tenant on 1/3rd batai including fodder. Thus lower appellate Court