1998 PLP 949 (CLC)

On 30‑12‑1969, through Mutation No. 83,Dara (respondent No.2‑defendant No. l), purchased the suit land from Muhammad Abbas and another ostensibly for Rs. 6,

500. On 23‑10‑1970, Dara transferred this land to Mst. Bakhshai (appellant‑defendant No. 2). Qutab Din (respondent No.l‑plaintiff) pre‑empted the sale being' an heir of the vendors, an owner in the village and a co‑sharer in the Khata of the suit land. The suit was contested. Finally, the learned Civil Judge vide judgment, dated 3‑11‑1976 decreed the suit on payment of sale price of Rs.6,

500. Mst. Bakhshai and Dara filed an appeal, which was dismissed on 8‑7‑1977. Hence, this regular second appeal.

2. The brief facts of the case are that original vendee Dara sold the suit land to Mst. Bakhshai, who subsequently claimed to be a tenant in the suit land. As many as 8 issues were framed including Issues Nos.l, 1‑A and 1‑B, which are material for the disposal of this appeal and are reproduced below:

(1) Whether the plaintiff has superior pre‑emptive right as against the vendee‑defendants qua the suit land? (1‑A) Whether Mst. Bakhshai is a tenant of the land? If so, with what effect? OPD. (1‑B) If Issue No. l‑A is proved in the affirmative, whether M.L.R. 115 has application? OPP

3. The learned counsel for the appellant submitted that Mst. Bakhshai was a tenant in the land in dispute for the last 25/30 years and as such by the creation of. first right of pre‑emption, under para. 25 of the Land Reforms Regulation, 1972, she possessed a superior pre‑emptive right against the pre‑emptor Qutab Din. The learned counsel further submitted that the pre‑emptor was bound to establish and maintain his superior pre‑emptive right on the date of sale, on the date of suit and on the date of the decree. He referred the case of Ali Muhammad v. Malik Pir Bakhsh (PLD 1986 Lahore 39) in support of his contentions.

4. The learned counsel for the contesting respondent, on the other hand, submitted that the sale in question took place on 30‑12‑1969, while the alleged sale in favour of the appellant was made on 23‑10‑1970 when no right of pre emption existed in favour of a tenant. He further submitted that the tenancy rights, if any, of the appellant culminated and matured into ownership rights by purchase of the suit land on 23‑10‑1970 and she was not at all a tenant in Kharif, 1972 when a pre‑emptive right was created in favour of a tenant. He relied upon J the cases of Malik Pir Bakhsh and others v. Ali Muhammad (1992 SCMR 1031) and Elahi Bakhsh and 2 others v. Mst. Balqees Begum and 4 others (1992 SCMR 2443) in this regard.

5. The contention of the learned counsel for the appellant is highly misconceived. Admittedly, on 23‑10‑1970, when Mst. Bakhshai appellant purchased the land in dispute from Dara, the original vendee, no right of pre emption existed in favour of a tenant. Hence, the sale in her favour was not in recognization of her superior pre‑emptive right. It was, obviously, a re‑sale by Dara in her favour. Anyhow, the appellant's tenancy rights merged into and matured as ownership rights under section 111 (d) of the Transfer of Property Act, 1882, which is as under:‑‑‑ "

111. Determination of lease.‑‑‑A lease of immovable property determines‑‑ ' (a)

(b)

(c)

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;"

6. In any case, on becoming owner of the suit land through purchase on 23‑10‑1970 the appellant ceased to be a tenant in the said land. The right of pre‑emption to a tenant was given from Kharif, 1972 through para. 25 of the Land Reforms Regulation, 1972 (M.L.R. 115). At that time, the appellant was in possession as owner and not as a tenant. She could not resist admitted superior pre‑emptive right of the pre‑emptor on the basis of so‑called tenancy in her favour. She could not be simultaneously a tenant and an owner of the suit land. This view is supported from the findings of the apex Court in the case of Fazal Khan and another v. Ghulam Rabbani (PLD 1983 Supreme Court 265), wherein it was held:‑‑‑

"But, in the present case, the question is whether any improvement in the rights of the appellants had taken place before the institution of the suit on 2‑7‑1972. They rely or the right of pre‑emption created in favour of the sitting tenants on the land comprised in their tenancies, and this right became vested expressly with effect from Kharif 1972 and not retrospectively from any prior date. Plainly, therefore, the right of pre‑emption created by this provision of law was available only to persons who were tenants on the date of the enforcement of this law or in the future."

7. The facts of the case of Ali Muhammad are not identical to the facts of the case in hand. In that case the vendee was a tenant at the time when the suit was instituted, but in the instant case the vendee or the subsequent vendee were not the tenants at the time of sale, at the time of institution of the suit and at the time of the decree.

8. In view of the above, the appeal is dismissed with costs having no merits A.A./B‑31/L Appeal dismissed