P L D 1988 Lahore 234 (PLP)

Facts giving rise to this regular second appeal are that one Abdul Shakoor sold certain land in favour of the appellant, Jalla, whereupon the respondent, Abdul Hayee, filed a suit for pre-emption. It was alleged by the respondent that he was a co sharer of the disputed land and. had, therefore, a superior right of pre emption. Suit was resisted by the appellant contending, inter alia, that he was a tenant of the land in question at the time of its sale and as such had the first right of pre emption. The appellant's plea found favour with a Civil Judge of Okara who was seized of the suit. As a result, the suit was dismissed by him. Respondent went in appeal before the District Judge, Okara. It was held by the learned District Judge that at the time of its sale in his favour, the appellant cultivated the disputed land as a lessee and not as a tenant and, therefore, the respondent had right of pre emption against him, for being co sharer of the said land. He reversed finding of the learned Civil Judge on issue relating to the right of pre-emption and decreed the suit. Hence this second appeal.

2. Relevant provisions of paragraph, 25 of the Land Reforms Regulation 1972, hereinafter referred to as the said Regulation, whereby first right of pre emption was conferred on a tenant, read as follows: "

25. Right of tenants. (l) A tenant shall not be ejected from his tenancy unless it is established in Revenue Court that he has:- (a ) failed to pay the rent in accordance with the terms of the tenancy; or (b) used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it; or (c) failed to cultivate or arrange for the cultivation of the land comprised, in the tenancy in accordance with the terms thereof, or if there are no express terms in this behalf in accordance with the customary manner of cultivation in the locality; or (d) sub-let his tenancy. (2)The crop grown at any time during Rabi 1971 -72 on any land comprised in a tenancy shall, on its maturing, be apportioned between the tenant and the landlord in accordance with the law for the time being in force. (3) As from Kharif 1972 (a) land revenue and other taxes, cases, surcharge and levies on land shall be payable by the owner; (b) the liability for payment of water rate, and providing seed for any land shall be that of the owner or other person in possession thereof, other than the tenant; (c) the cost of fertilisers and pesticides required for the land comprised in a tenancy shall be shared equally between the owner and the tenant; (d) subject to the other provisions of this Regulation, a tenant shall have the first right of pre-emption in respect of the land comprised in his tenancy. .. It was contended by the learned counsel for the appellant that a lessee was as good as a tenant for the purposes of paragraph 25 of the said Regulation and, therefore, the appellant had the first right of pre emption. He relied on Muhammad Yousaf v. Province of Punjab through Collector, Lyallpur P L D 1976 Lahore 328 to support his plea. In the first instance, the said Regulation was known as Martial Law Regulation 115 and it did not contain definition of the word "tenant" . Subsequently, by means of the Land Reforms Regulation (Punjab Amendment) Ordinance, 1982 following definition of the word "tenant" was given in paragraph 2 by inserting clause (13) therein: (13) tenant' means a person who holds land under another person and is, or, but for a special contract, would be, liable to pay rent for that land to that other person and includes the predecessor and successors interest of such person, but does not include -- (a) a mortgage of the rights of a landowner; or (b) a person holding any land under the Federal Government or a Provincial Government, or under any statutory authority or corporation set up by any such Government as may be notified by it in this behalf; or (c) a person to whom a holding has been transferred or an estate or holding has been let in farm, for the recovery of arrears of land revenue or of a sum recoverable as such as arrears or (d) a lessee, whether cultivating the land himself or through another person." Argument of learned counsel for the appellant was that it was by means of the said amendment that a lessee was deprived of the first right of preemption but prior to that the said right did vest in him. His plea was that if the position had been otherwise, the farmers or law would have defined the word tenant as aforesaid in the said Regulation when it was originally made.

3. In reply, it was submitted by learned counsel for the respondent that a lessee could not be equated with a tenant and, therefore, the appellant could not take benefit of the above provisions of law. In this connection, reliance was placed by him on Abaad Ali and another v. Muhammad Din .198 S C M R 742; Sain Muhammad v. Municipal Committee Gojra and another 1982 C L C 847 Lah., Muhammad Ashraf v. Member Revenue, Board of Revenue, Punjab, Lahore etc. 1984 CLC 2950, Wali Dad v. Deputy Commissioner Karachi and 2 others PLD 1975 Kar. 202, Ilahi Bux and 3 others v. The Deputy Commissioner, Sukkur and 3 others P L D 1977 Kar. 825 and Haji Ghulam Yaseen etc. v. Muhammad Ashraf P L D 1985 Rev. 5.

4. It was not disputed by learn d counsel for the appellant that at the time of its sale in his favour the land in dispute was cultivated by the appellant as a lessee. It is true that in the case of Muhammad Yousaf, on which reliance was placed by learned counsel for the appellant, it was held by a learned Single Judge of this Court that a lessee who cultivates the land himself could also be regarded as a tenant for the purpose of paragraph 25 of the said Regulation but, as indicated in the case of Muhammad Ashraf cited by learned counsel for the respondent, view taken in the case of Muhammad Yousaf Was dissented from by a Division Bench of this Court in Writ Petition No.980 of 1976, Taj Muhammad v. Province of Punjab. Earlier, in the case of Sain Muhammad, it was held by another learned Single Judge of this Court that a lessee cannot seek protection of paragraph 25 of the said Regulation, against ejectment from the land leased out to him. Aforementioned cases of Wali Dad and liahi Bux and 3 others are Division Benches cases decided by the Sind High Court in which it was ruled that the tenant contemplated by paragraph 25 did not include a lessee. Similar opinion was expressed by the Supreme Court in the case of Abaad Ali and others to which reference has already been made. Relevant portion of the judgment of the Supreme Court in the said case reads as under: - "Muhammad Din's case is that he is a tenant and is, therefore, entitled to preempt the sale under the provisions of Martial Law Regulation No.115. A learned Single Judge of the High Court came to the conclusion that the present petitioners were able to prove by oral evidence only that they were lessees in respect of the fruit of the garden and had also been cultivating crops in the land under the garden. Under Martial Law Regulation 115 the definition of the term 'tenant' appearing in the West Pakistan Land Revenue Act has been adopted. This is an admitted position. The liability to pay rent is the main condition for becoming a tenant. No evidence was led in the present case to show that there was any liability to pay the rent. There was, therefore, no proof that the petitioners were the tenants. Not being tenants as visualized by the Martial Law Regulation No.115 they cannot take advantage of its provisions which give the right of preemption to a tenant". Board of Revenue, Punjab, has also held in the aforesaid case of Haji Ghulam Yaseen etc. that a lessee is not a tenant within the meaning of the said Regulation.

5. As already noted definition of the word "tenant", which was not originally included in the said Regulation, was inserted in paragraph 2 thereof by means of the Land Reforms Regulation (Punjab Amendment) Ordinance, 1982. Earlier, Notification No.DSL 142/73/ 1628-LC(2) was issued by the Land Commission, Punjab, on 23rd April, 1973 whereby definition of the word "tenant" as given in clause (26) of section 4 of the West Pakistan Land Revenue Act, 1967, was adopted for the purposes of the said Regulation. Clause (26) ibid reads as under: (26) 'tenant' means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to other person, and includes the predecessors and successors interest of such person, but does not include: (a) a mortgagee of the rights of a landowner, or (b) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the provisions of this Act, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or (c) a person who takes from Government, a lease of unoccupied land for the purpose of subletting it." Thereafter, on 8th June, 1973, a clarificatory notification, namely, Notification No,DSL-142/73/2322-LC(II), was issued stating that a lessee was not a tenant for the purposes of paragraph 25 of the said Regulation. It reads as follows: "In continuation of Notification No.DSL-142/73/1628 LC(II), dated the 23rd April, 1973, the Land Commission of the Punjab is pleased to clarify that the word 'tenant' as used in paragraph 25 of Martial Law Regulation 115 does not include a lessee, who is covered by the definition of 'landlord' as given in subsection (12) of section 4 of the West Pakistan Land Revenue Act, 1967 (W.P. Act XVII of 1967). It seems that having felt that despite issuance of the said Notification their real intention had not been correctly understood while deciding the case of Muhammad Yousaf, the makers of the law came out with the above amendment in the said Regulation whereby definition of the word 'tenant' was included therein. By means of this amendment, it was, in a way, declared by the framers of the law that they never intended to allow a lessee to make use of the provisions of paragraph 25 of the said Regulation even though he was cultivating the land! himself. Contention of learned counsel for the appellant that by! introducing the said amendment the framers of the law changed their policy was a lessee, and that prior thereto they treated him at par with a tenant, does not appeal to reason. As explained by my, learned brother, Gul Zarin Kiani, J., in the precedent case of Muhammad Ashraf, provisions of paragraph 25 were enacted for the benefit of poor tillers of the land with a view to ameliorating their condition and not for the sake of lessees who stand on quite a different pedestal. It is not infrequently that a lessee does not cultivate the land himself and have it tilled by a tenant. During the subsistence of a lease, position of a lessee is more of a landlord or owner of the land under lease than that of a tenant thereof. I am, therefore unable to agree with learned counsel for the appellant that before the amendment in question, a lessee was also tenant for the purpose of paragraph 25 of the said Regulation.

6. What emerges from the above discussion is that the appellant being a lessee, could not claim first right of preemption on the score of paragraph

25. Admittedly, the respondent is a co sharer on the land in question. It was, therefore, rightly found by the learned District Judge that he had a superior right of preemption.

7. There is no merit in this appeal. It is accordingly, dismissed with no orders as to costs. A.A. /J-19/L Appeal dismissed