1992 PLP 1382 (CLC)

Ch. Khurshid Ahmad for Appellant. Malik Noor Muhammad Awan for Respondents. Date of hearing: 26th February, 1992. Facts have already been sufficiently set out in order of the Court dated 17‑10‑1990 by which issue No.1 covering controversy relating to superior right of pre‑emption claimed by the vendee on the ground of being a non‑occupancy tenant was remitted to the lower appellate Court for a finding on it and need not be reiterated in fulness except where it is necessary for the decision of the point at issue. It was found by the lower appellate Court that the vendee was in occupation of the land‑in‑dispute as its `lessee' at the time of its sale to him, and, not in the capacity of a non‑occupancy tenant as urged by him and returned its findings recorded on 14‑2‑1991 to this Court. Appellant objected to the correctness of the findings, and submitted objections under Order 41, rule 26 of Civil Procedure Code. Respondents did not raise any objection to the findings of the lower appellate Court given on the remitted issue, but resisted the objections filed by the opposite‑party. Seen from the order of the Court dated 17‑10‑1990, and the findings recorded by the lower appellate Court on the issue remitted to it, under order 41, rule 25, C.P.C., it is clear that the only point surviving for decision in the appeal is about the nature of tenancy rights claimed by the appellant. To put it more succinctly, essence of the controversy between the parties was, whether the vendee‑appellant held the land in dispute as non‑occupancy tenant or a lessee as found in the lower appellate Court. Ch. Khurshid Ahmad, learned counsel for the appellant vehemently argued that on record, possession of the appellant as a tenant on the land in dispute at the time of its sale was sufficiently established and the lower Court, in finding the possession of the appellant as a lessee went against material portions of record, and, also contrary to the statutory provisions. It was submitted that Revenue Records available on file gave status of non‑occupancy tenant (Ghair Dakheel Kar) to the appellant, and, thus he was possessed of a first right of pre‑emption which was sufficient to defeat rival competitive claim of the respondents. In support of his arguments, learned counsel referred to definitions of "landlord" and "tenant" in section 4 of Punjab Land Revenue Act, 1967 as also the definition of similar terms in section 4 of Punjab Tenancy Act, 1887 and relied upon a decision of N‑W.F.P. Board of Revenue, in Dost Muhammad etc. v. Sayyed Kasim Shah PLD 1978 Rev. 33 (N.‑W.F.P.), a leave granting order of the Supreme Court in Muhammad Rafique v. Faqir Muhammad and others PLD 1986 SC 332, and, cases of Bakhtawar Shah and others v. Member, Board of Revenue and others 1985 SCMR 348 and Rozi Muhammad v: Haji Gul Muhammad and another 1990 SCMR 1265. As against this, rival argument by Malik Noor Muhammad Awan, Advocate, learned counsel for respondents was that on his own statement, appellant held the land in dispute as `lessee' paying a fixed lease‑money, and, by merely recording him as `Ghair Dakheel Kar' in the record of rights, and Khasra Girdawari, he could not assume to himself the legal status of a `tenant' within the contemplation of para. 25, sub‑para (3), clause (d) of Land Reforms Regulation, 1972, commonly known, as MLR‑115 of 1972. By reference to record, it was submitted that initial entry on possession of the land by the appellant was under a lease‑deed by Ali Muhammad, later continued under a separate lease‑deed by Mst. Sarwat, daughter of the original lessor. Both the lease‑deeds were on file, and, appellant himself also admitted his entry under that status. It was further submitted that independent of the above leases, appellant had no other status, and, in absence of further evidence could not plead it. Learned counsel also submitted that since the appellant was in occupation as lessee of the land‑in- dispute, at the time of purchasing it, he had no right of pre‑emption. In support of the proposition that the lessee had no right of pre‑emption under para. 25 of Land Reforms Regulation, learned counsel referred to the cases in Muhammad Ashraf v. Member (Revenue), Board of Revenue, Punjab, Lahore and 18 others 1984 CLC 2950 (Lahore), Faqir Muhammad and others v. Muhammad Rafiq and others 1986 CLC 1028 (Lahore), Hamid Khan v. Wali Muhammad and 4 others 1989 CLC 2273 (Peshawar), Habib Roz Gujar v. Janatul Haq and 7 others 1990 MLD 80 (Peshawar), Major (Retd.) Sher Bahadur v. Member, Board of Revenue, N.‑W.F.P., Peshawar, etc. 1989 CLC 2052, Ramzan and 5 others v. Member, Board of Revenue and others 1991 CLC 2125 (Lahore), Rozi Muhammad v. Haji Gul Muhammad and another 1990 SCMR 1265 (also relied upon by the other side), Lal Din v. Bashir Ahmad 1991 SCMR

228. As for entry of `Ghar Dakheel Kar' in the Revenue Records, it' was submitted that since it ran contrary to the appellant's own statement and also the express terms of the lease‑deed, it had little evidentiary value and relied upon a decision of this Court in Wahid Bakhsh and others v. Nazir Ahmad and others PLD 1986 Lah. 87 in support of it. As observed in the opening paragraph of the judgment, real question which shall determine the fate of this appeal is the legal status of the appellant, whether he possessed the land at the time of its sale as `tenant' or a `lessee'. In case, it is found that he held it as tenant, his appeal shall succeed. Conversely, in view of prevailing case‑law, it is bound to fail. There is neither doubt nor dispute that lessee as such had no right of pre‑emption conferred in para. 25 of the Land Reforms Regulation. However, to have a clear perception of the matter, a brief statement as to how the appellant entered upon the land, even at the risk of repetition is found necessary. Ali Muhammad owned a considerable area of agricultural land in Mauza Jandiala of District Lahore. On present record, he was shown to own a little more than 800 Kanals of land in this village. By a deed reduced in writing on 13‑1‑1969, above land was leased , by him to appellant for a term of three years w.e. June 15, 1969 to June 14,1972, upon payment of Rs.8,000 premium per annum. Lease‑deed is Exh. P3 on file. Upon demise of Ali Muhammad, he was survived by three daughters, namely, Mst. Sarwar, Mst. Iffaat, Mst. Nasim, a brother Ghulam. Muhammad and sisters. His land was distributed between his heirs, in accordance with Islamic Law of Inheritance, and, a mutation of inheritance was sanctioned in their favour. Land inherited by them was partitioned among them. Three daughters of Ali Muhammad came to own 538 Kanals and 13 Marlas in equal shares. To each, belonged 179 Kanals and 11 Marlas. Mst. Sarwat Ara sold her share in the land (179 Kanals and 11 Marlas) to the appellant through sale‑mutation No.123, sanctioned on 5‑8‑1974. Revenue record prior to the record of rights pertaining to 1970‑71 regarding the land‑in dispute has not been put in evidence. Record‑of‑right for the year 1970‑71 showed appellant in possession as `Ghair Dakheel Kar' upon payment of a lump sum fixed rent of Rs.8,

000. This was in line with the terms of.lease‑deed Exh.P

3. Similarly, extract from register Khasra Girdawari w.e.f. Kharif 1971 onward till Jamabandi for the year 1974‑75, denoted appellant's possession as `Ghair Dakheel Kar'. Upon expiry of the term fixed in the lease‑deed Exh.P3, appellant took on further lease, the land‑in‑dispute from Mst. Sarwat for a period of three years w.e.f. June 15, 1972 to June 14, 1975, upon payment of annual Theka. in the sum of Rs.5000. From the above two lease‑deeds, it was evident that the appellant took and held the land as `lessee' upon payment of fixed annual premium. Initially, it as Rs.8,000 per annum for the whole land of Ali Muhammad , and, thereafter, Rs.5,000 for share of Mst. Sarwat, later sold by her in his favour. From June 1972 to June 1975, appellant continually held the land and was in its possession under an unbroken lease period. Revenue Authorities recorded his possession as `Ghair Dakheel Kar', which in the context denoted merely a lessee. By itself the entries `Ghair Maurisi' or `Ghair Dakheel Kar' did not necessarily mean that the person so described was a tenant. The entries in cultivation column are to be read alongwith the entries in the rent column so as to discover the true nature of possession. When seen in the above prospect, in the light of other available evidence, the only logical conclusion was that the appellant was in possession under a `lease' from Mst. Sarwat Ara, and, was not her `tenant' within the meaning of para. 25 of MLR

115. Therefore, natural corollary of it would be that he had no right to successfully resist pre‑emption against him by the respondent, who, without dispute had better right qua him. She was not only real daughter of the vendor, but was a co‑sharer in the land also and thus had a clear superior right of pre emption against the appellant. Case‑law relied upon by the respondents gave clear support to the contention that a lessee had no right of pre‑emption though a tenant had. Contention that the appellant was also transferred ownership‑rights in the land measuring about 120 Kanals, and 16 Marlas by Provincial Land Commission through Mutation No.97 sanctioned on 12‑6‑1973 proved tenancy of the appellant in terms of para. 18 of MLR‑115 hardly assisted. Respondent was not a party to this transaction. If' the Land Commission considered the appellant a tenant in occupation of excess land surrendered by Ali Muhammad, respondent could not be held bound by its effect. In view of the foregoing, the appeal had little substance in it and is accordingly dismissed with no order as to its costs. Records to be returned. AA./‑14/L Appeal dismissed.