1989 PLP 1417 (MLD)

AJMAL MIAN, C.J.‑‑This petition is directed against the orders dated 5 -2‑1979, 13‑1‑1980 and 3‑5‑1980, passed by respondents 3,2 and 1 respectively. The brief facts leading to the filing of the above petition are that the petitioner and his brother Muhammad Hashim purchased Servey Nos. 232 and 234 of Deh Khado Taluka Tando Allahyar, for a sum of Rs.53,000 under a registered sale‑deed at 27‑3‑1976. The respondent 4 claimed the right of pre‑emption under paragraph 25 of the Martial Law Regulation 115 (hereinafter referred to as the: MLR) on the ground that he was HARI of the above two survey numbers. The respondent 3 vide his aforesaid order dated 5‑2‑1979 held that respondent 4 was HARI for the RABI of 1974‑75 in respect of Survey No.232 only and not in relation to the other survey number and, therefore, he allowed respondent 4's application claiming pre‑emption. The petitioner being aggrieved by the above order filed an appeal, which was dismissed by the aforesaid order dated 13‑11-1980. Against the above order the petitioner filed revision which was dismissed by respondent 1 by the aforesaid order dated 3‑5‑1980. The petitioner has, therefore, riled the present petition. In support of the above petition, Mr. A.Q. Halepota, learned counsel for the petitioner, has contended that according to the finding of the respondent 3, the respondent 4 was Hari for RABI season of the year 1974‑75 which corresponded to the period commencing from 1‑10‑1974 to 31‑3‑1975, the respondent 4 was not entitled to claim the right of pre‑emotion, as he was riot HART on ‑the date of the purchase of the land by the petitioner on 27‑3‑1976. In furtherance of his above submission, he has referred to the case of Pir Bux v. Government of Sind and 2 others (PLD 1977 Karachi 158), in which a Division Bench of this Court has held that the tenant under MLR‑115 is different from that under the Sind Tenancy Act and that a tenant can succeed under MLR if he was the tenant at the time of its sale. On the other hand, Mr Nibhando Khan, learned counsel for respondent 4, has contended that respondent 4 was HARI even at the time of the sale as admittedly no other person had cultivated the above survey number between the period of admitted HARISHIP of the respondent 4 and the sale. He has further submitted that the petitioner has no locus standi to prosecute the above petition as the land was sold by him and his brother Muhammad Hashim in 1981. It may be observed that nothing has been brought on record to indicate that respondent 4 continued to be HARI even after the expiry of RABI season of 1974‑

75. In our view the mere fact that the above survey number might have not been cultivated by any other person after the expiry of RABI of 1974‑75 would not make the respondent 4 as HARI of the above survey number. According to the finding of the respondent 3, the respondent 4 was HARI for the above RABI season only, there is no finding that he continued as such thereafter. In this view of the matter, the three impugned orders cannot be sustained as the right of pre‑emotion could not have been allowed under paragraph 25 of the MLR unless and until respondent 4 would have proved that on the date of the cause of action i.e. on the date of the sale, he had subsisting right as a HARI or in other words he was in cultivable possession as HARI. As regards the second submission of Mr. Nibhando Khan that the petitioner has no locus standi as he had sold the above survey numbers alongwith his brother in 1981, it may be observed that nothing has been brought on record to support the above contention. Even otherwise, the question in issue is whether the petitioner had cause of action to file the petition on the date when it was filed. We would, therefore, allow the above petition and declare the impugned orders as being without lawful authority and of no legal effect. However, there will be no order as to costs. M.Y.H./H‑136/K Petition allowed.