2006 PLP 166 (CLC)

MAULVI ANWARUL HAQ, J.

Vide registered sale-deed dated 31-3-1980, respondent No.1 sold the land described in para. No.1 of the plaint to respondents Nos.2 to 4 for a consideration of Rs.1,05,

000. On 17-2-1981, the petitioner filed a suit for possession of the said land by pre-emption. He claimed to be a collateral and a sharer in the amenity. According to him, the land had actually been sold for Rs.80,

000. The vendee respondents filed written statement taking a preliminary objection that what has been sold are the tenancy rights in the land owned by the Provincial Government with the sanction of the Collector, Sahiwal. The precise objection was that the transaction is not pre-emptible. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide judgment and, decree dated 3-3-1985, subject to deposit of Rs.1,05,

000. A first appeal filed by the vendee respondent was allowed by a learned Additional District Judge, Sahiwal on 9-7-1988. He held that transaction was not pre-emptible.

2. The learned counsel for the petitioner contends with reference to the case of Sher Bahadur v. Behram Khan 1988 SCMR 1735 that the sale of tenancy rights in question was a sale of land and as such pre-emptible. Learned counsel for the respondents on the other hand, contends that the judgment of this Court in the case of Majid Ahmad v. Yousaf 1987 CLC 1891 has since been approved by the Honourable Supreme Court of Pakistan in the case of Aziz Hussain and 2 others v. Rashid Ahmad and 3 others 1992 SCMR 1018. According to the learned counsel, the occupancy rights mentioned in section 2(3)(1) of the Punjab Alienation of Lands Act, 1900, are a phenomenon different from the tenancy, subject-matter of the Colonization of Government Lands (Punjab) Act, 1912.

3. I have gone through the copies of the records with the assistance of the learned counsel for the parties. Now the copy of the sale-deed dated 31-3-1980 is Exh.P.5. It is a sale of Dakhel Kaari rights by Muttali in favour of the vendee respondents. A copy of the relevant Jamabandi is Exh.P.2, the Provincial Government is recorded to be the owner and Muttali is one of the Dakhel Kaars under section 10 of the said Act of 1912.

4. Now I may note here that the judgment relied upon by the learned trial Court in the case of Amir Din and others v. Sabir Hussain PLD 1979 Lah. 896 was somewhat based on consent as the argument was not pressed.

5. So far as the judgment of the Honourable Supreme Court of Pakistan in the case of Sher Bahadur is concerned, the same was given with reference to the occupancy rights, as envisaged by the Punjab Tenancy Act, vesting in an evacuee and ultimately transferred under the Settlement Laws. Thus, the only case decided by a High Court available is the one relied upon by the learned Additional District Judge i.e. the case of Majid Ahmad v. Yousaf, in which the matter was fully argued, discussed and decided on the lines that the definition of land given in Punjab Alienation of Lands Act, 1900, and adopted in the Punjab Pre-emption Act, 1913, vide section 3(1) thereof would be bearing no relevance to the tenancy, envisaged in the said Colonization of Government Lands (Punjab) Act, 1912 which was promulgated in the year 1912. The rights of occupancy referred to in section 2(3)(f) of the Punjab Alienation of Lands Act, 1900, of course, relatable to the rights mentioned in sections 5 and 6 of the Punjab Tenancy Act, 1887.

6. The matter has further been clarified in the said judgment in the case of Aziz Hussain and 2 others being relied upon by the learned counsel for the respondents, wherein it has been held that the transfer of tenancy rights did not amount to the sale of land. The civil revision accordingly is dismissed without any order as to costs. H.B.T./S-506/L Revision dismissed.