P L D 1991 Supreme Court 489 (PLP)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted in both the appeals to examine whether the sales which were pre‑empted having taken place on 5‑6‑1972 (in Civil Appeal No. 21‑P of 1987) and 21‑6‑1972 (in Civil Appeal No. 22‑P of 1987), the right available to a tenant under the Land Reforms Regulation, 1972 enforced on 11th of March, 1972 granting such a right to the tenants as from Kharif 1972 was available to the purchaser of the property who is a tenant, against the pre‑emptors.

2. In both the appeals the pre‑emptors/plaintiffs are the appellants. In Civil Appeal 21‑P/87, 7 kanals 11 marlas of land was purchased by Ziarat Sher which was pre‑empted by Shahzad Gul and Sarwar Khan, the appellants. The trial Court dismissed the pre‑emptors' claim on the ground that they claim contiguity with the suit land while Khasra No. 769‑Shamilat was contiguous to the suit land and Ziarat Sher/the vendee was recorded as sharer in the Shamilat. Hence, the pre emptive claim of the pre‑emptors, was not found to be superior to that of the vendee.

3. In Civil Appeal 22‑P of 1987, the sale had taken place on 21‑6‑1972. The' area sold was 4 kanals 6 marlas. The vendee was found to be a tenant of one Khasra No. 1213/70 measuring 1 kanal 16 marlas and to that extent he was found to have superior right of pre‑emption over that portion of the land as compared to the pre‑emptors. The rest of the area was held to be pre‑emptible and decree in terms thereof was granted on payment of the proportionate price. The appeal was dismissed by the District Judge so was the revision in both the cases.

4. Land Reforms Regulation, 1972 was enforced on 11th of March, 1972 and it did not recognise with immediate effect the superior most right of tenant to pre‑empt the land forming his tenancy. The right was postponed to the future date namely Kharif 1972. The question as to when does Kharif 1972 commence has not been uniformly answered in the various decisions of the High Courts and this Court. In Zilladar v. Allah Banda and 5 others 1981 SCMR 1027 the sale was effected on 20th March, 1972. The Board of Revenue held that Kharif crop is sown in the month of May and harvested in September and October. The Supreme Court did not interfere with that finding holding that it was a finding of fact and not open to challenge. In Fazal Khan and another v. Ghulam Rabbani PLD 1983 SC 265, We had taken place in 1971 and it was held that at the time of We in favour of the tenant benefit of the Land Reforms Regulation, 1972 was not available. In Muhammad Aslam v. Muhammad Akram and others (Law Notes 1968 Lah. 176), for determining the tenancy under the Grow More Food Scheme the period of Kharif and Rabi crops was examined and it was held that Kharif started from the month of June. In Abdur Rashid Shah v. Khurshid Ahmad and another 1980 CLC 977, the sale had taken place in August, 1.972 and the decision in the case of Muhammad Aslam (Law Notes 1968 Lahore 176) was followed to hold that the Kharif started in the month of June. In Allah Rakhi and another v. Malik Khan PLD 1979 Lah. 23 the sale had taken place on 27‑6‑1972 and the benefit of law was not allowed holding that Kharif started from 1st of July. In Mashal v. Fazale Rabbi and 2 others 1984 C L C 1266 the sale had taken place on 25‑8‑1972 and the protection was afforded holding that Kharif started from June/July. In Nawab Ali and others v. Ali Muhammad and others PLD 1980 Revenue 84 (Punjab) sale had taken place on 26‑6‑1972 and the benefit was not allowed holding that the Kharif started from 1st of July.

5. When these appeals came up for the first time on 21‑1‑1991 for hearing, we had orally announced the acceptance of both as these conflicting authorities on the question were not brought to our notice. However, while preparing the judgment this conflict of decisions was noted, these appeals were re-fixed for rehearing after notice to both the parties.

6. The enforcement of the Land Reforms Regulation, 1972 cannot be left to an indeterminate date. The very promulgation of the Land Reforms Regulation, 1972 on 11‑3‑1972 not recognising immediately and as from the date of enforcement of the Regulation the superior right of a tenant gives an indication that its enforcement was postponed to a future date. What was that future date was not clearly provided in the Regulation itself. It was by reference to Kharif 1972. The decisions of the Courts vary from May to 1st of July as the commencing date of Kharif.

7. In the N.‑W.F.P. Tenancy Act, section 30 provides as hereunder:‑

"Time for ejcetment.‑‑A decree or order for the ejectment of a tenant shall not be executed at any other time than between the first day of May and the fifteenth day of June (both days inclusive), unless the Court making the decree or, where the order is made under section 27, the officer making the order otherwise directs." In the Punjab Tenancy Act. section 47 provides as follows:‑‑ "Time for ejectment.‑‑A decree or order for the ejectment of a tenant shall not be executed at any other time than between the first day of May and the fifteenth day of June (both days inclusive), unless the Court making the decree or, where the order is made under section 44, the officer making the order, otherwise directs." In the Sindh Tenancy Act, section 16 provides as hereunder:‑‑ "Tenant‑at‑will.‑‑A tenant‑a‑will shall not be liable to be evicted before the end of a cropping season, the dates for which may be prescribed."

8. These statutory provisions give a fair indication that the law relevant to the tenants and the tenancies has fixed the 1st of May as the dividing line between the two crops Rabi and Kharif in the Province of N.‑W.F.P. and Punjab. The time between 1st of May and 15th of June is utilised for preparation and sowing of a Kharif crop which may well, go depending upon the crop beyond 15th of June as well.

9. Article 25 of the, Land Reforms Regulation, 1972 being beneficial, prospective and relating to the right of tenancy as from Kharif 1972 had,' necessarily to be related to the date given in the law relating to the tenants. Their right, therefore, will come into existence under the Land Reforms Regulation as from 1st of May. On this view of the matter, we find that the benefit of the sales made in June in favour of the tenants would accrue to them and the decision of the Courts assuming that aspect of the case without examining it is correct and sound.

10. There is no merit and both the appeals are hereby dismissed with costs. M.BA./S‑603/S Appeals dismissed