1995 PLP 502 (MLD)

‑‑‑‑Para. 25‑‑‑Non‑consideration of material facts on record ‑‑‑Effect‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Suit for pre‑emption on basis of being tenant of land in question ‑‑‑Pre‑emptor's status as tenant denied by vendees‑‑‑Pre‑emptor himself admitting in his statement before Court factum of lease in his favour‑‑‑Board of Revenue did not advert to factual position admitted by pre‑emptor himself that he was in possession of land as a lessee‑‑ Non‑consideration of material piece of evidence vitiated the order in question of Board of Revenue‑‑‑Vendor while appearing as witness had categorically stated that pre‑emptor was in possession of land in question, as a lessee‑‑‑Such statement was also overlooked by Board of Revenue ‑‑‑Pre‑emptor having himself admitted his status as a lessee, he was estopped from prosecuting his suit as a tenant‑‑‑Order of Board of Revenue decreeing pre‑emption suit was set aside and case was remanded for its decision afresh after giving due consideration to admission of pre‑emptor. Ch. Noor Ahmad Dhilan for Petitioner. Sh. Abdul Aziz for Respondent No.

4. Date of hearing: 13th November, 1993. Facts necessary for the disposal of this petition, briefly stated, are that the pre‑emption suit filed by Muhammad Shafi respondent on the ground of his being tenant of the suit land was dismissed by the A.C./Collector, Chunian holding that the plaintiff/respondent was a lessee and not a tenant of the land in dispute. Respondent preferred an appeal which was accepted by the Additional Commissioner who relying upon the entries of Khasra Girdawaris Exhs. P. 3, P. 4 and P. 5 came to the conclusion that the plaintiff was a tenant. He accordingly decreed the suit of the respondent vide judgment dated 25‑3‑1986. Petitioner took the matter in revision but with no better result as the learned Member (Revenue), Board of Revenue, Punjab, vide his order dated 29‑6‑1986 upheld the finding of the learned Additional Commissioner that the respondent was a tenant of the land in dispute. The learned Member held that "the mere fact that the rent is paid in cash on an annual basis does not carry a legal assumption that the land is held on lease. To establish the contention of lease, it is necessary to prove that the possession is for fixed term by an agreement between the parties. Since such evidence was not established in this case, I would hold that the suit land was held by the respondent as tenant who, as such, was correctly granted the pre‑emption decree by the learned Additional Commissioner". Revision petition of the petitioner was accordingly dismissed in limine. Feeling aggrieved, petitioner approached this Court through this Constitutional petition to assail the validity of the impugned judgments of the learned Additional Commissioner and the Member, Board of Revenue.

2. I have heard the learned counsel for the parties. Learned counsel appearing in support of this petition has contended that the respondent appearing as his own witness had admitted that he took the land in dispute on lease for the first time in the year 1966 for five years, then in 1971 for four years and again in 1975 for five years. Grievance made by the learned counsel is that the learned Member, Board of Revenue has not adverted to this most important piece of evidence which clearly established that the respondent was a lessee of the land in dispute. Submission being made is that the impugned finding of both the Courts particularly of the learned Member, Board of Revenue is based on misreading and non‑reading of material evidence available on the record. Learned counsel for the respondent/pre‑emptor in reply submitted that the point now being raised was not taken by the petitioner before the Member Board of Revenue. He has further contended that the respondent's oral statement was not of much consequence as it was contradicted by the entries in Khasra Girdawaris which showed the respondent as a tenant.

3. I have given my anxious consideration to the submissions made by the learned counsel for the parties. It is true that in the Khasra Girdawaris placed on the record, the respondent was described as a tenant but his statement in Court (Copy Annex. `E') shows that he had been taking the land in dispute on lease for fixed terms. Relevant portion of his statement is reproduced hereunder:‑‑‑ I find that the learned Member himself held in the impugned order that in order to establish the factum of lease, it was necessary to prove the possession for fixed term by an agreement between the parties. This in fact was the correct statement of law as the necessary ingredients of a lease are (i) giving land on lease for fixed term; (ii) rate of lease money is also fixed and (iii) payment of the lease money is made periodically. The learned Member, however, did not advert to the aforenoted factual position admitted by the respondent himself which as rightly contended by the learned counsel for the petitioner showed that the respondent was in possession of the land in dispute as a lessee. Non‑consideration of this material piece of evidence vitiated the impugned order of the learned Member, Board of Revenue. It has also been brought to my notice by the learned counsel for the petitioner that Jamal Din, the original owner/vendor of the land in dispute appearing as D.W.2 had categorically stated that the land in dispute was in possession of the plaintiff/respondent as a "(Theka)". This evidence, too, has not been looked into by the learned Member.

4. As regards the objection of the learned counsel for the respondent that the point of non‑consideration of the aforementioned evidence was not taken before the learned Member, my attention has been drawn to ground (b) of the revision petition wherein it was specifically averred "the simple perusal of the statement of the pre‑emptor would show that he took the land in question on lease initially for 5 years period, subsequently for 4 years and again for 5 years period, till the same was sold to the vendee

Since in this case the respondent Muhammad Shafi had admitted the status of lessee in his own statement he was estopped from contesting the suit as tenant". The point taken in the grounds went to the root of the matter and, therefore, the learned Member should have duly examined the statement of the respondent and its effect on the crucial question raised before him. It may pertinently be observed that the entries in Khasra Girdawari do not carry presumption of correctness. In view of the position afore-stated, this writ petition is allowed, impugned order of the learned Member, Board of Revenue dismissing the petitioner's revision petition is set aside and the case remanded to the learned Member (Revenue), Board of Revenue, Punjab for passing fresh order after giving due consideration to the statement/admission made by Muhammad Shafi respondent as also the statement of Jamal Din D.W.2. No order as to costs. A.A./S‑520/L Petition accepted.