1991 PLP 228 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑The facts, in brief, are that Bashir Ahmad, respondent, purchased a piece of land measuring 15 Kanals 13 Marlas from Rehmat Begum on 18‑4‑1973 vide Mutation No.182, for a consideration of Rs.10,

500. The appellant filed a suit for pre‑emption in respect of the said land on the ground that Lal Din is Chaukatadar and also joint Khatedar. The suit was filed in the Court of Senior Civil Judge, was transferred the same to the Court of Assistant Commissioner/Collector, Faisalabad‑by virtue of Para 25(4) M L R No.115 (hereinafter referred to as Regulation No.115). The respondent contested the suit and filed a written statement, inter alia, alleging that Chaukatadar is not covered under Para 25(3)(d) of Regulation No.115 as tenant. The Assistant Commissioner tried the suit and ultimately decreed it in favour of the appellant on 30‑6‑1980. The respondent challenged the order of the Assistant Commissioner by way of an appeal before the Additional Commissioner (Revenue), Sargodha Division, Sargodha, which was dismissed by him on 17‑5‑1981, holding that Chaukatadar is a tenant under the Land Reforms Regulation. The respondent. unsuccessfully challenged the two orders before Member, Board of Revenue, who dismissed the Revision Petition on 8‑10‑1983. The respondent then filed a Constitution petition in the Lahore High Court. The petition was accepted by a learned Single Judge of the said Court by means of order dated 19‑11‑1985.

2. The appellant feeling aggrieved has filed this Civil Appeal in this Court. Leave was granted on 25‑3‑1986 as in similar matters in C.P.S.LAs. Nos.1040 and 1041 of 1985, leave had been granted.

3. We have heard the learned counsel for the parties. It is contended by the learned counsel for the appellant that the admitted position is that the appellant is a tenant, therefore, the judgment of the learned Single Judge has not correctly determined the question of law. A preliminary objection has been raised by the learned counsel for the respondent that the appellant may not be permitted to argue any other point besides the point on which the leave was granted. He referred to John E.Brownlee v. Vivan Mac Millan AIR 1940 Privy Council Page 219, and Ashfaqur Rehman Khan v. Ch. Muhammad Afzal PLD 1971 SC page

766. He has, however, frankly conceded that there are certain judgments which are against him. He has referred to Khushdil v. The State PLD 1981 SC page 582, Din Muhammad v. Umar Hayat 1981 SCMR 326; Khondkar Abu Taleb v. The State PLD 1967 SC page 32 and Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC page

407. This is not a universal proposition of law that the petitioner can be confined to argue only on a point on which the leave had been granted. In order to do complete and fair justice a departure can be made. The learned counsel has referred to the cases in which the petitioners were allowed to argue their cases on other points. Even otherwise the Court is not debarred to consider the correctness of a decision if the Court finds out a point of law which goes to the root of the cause; then no embargo can be imposed on powers of the Court. Any other ground may be permitted to be argued to promote the cause of justice. The Supreme Court has powers to do complete justice notwithstanding any party being not entitled as of right to argue a point. See Khushdil v. The State PLD 1981 SC Page

582. In the interest of justice such point shall have to be decided on due consideration of general importance. See Abdul Ghafoor v. Muhammad Shafi PLD 1985 SC page

407. We see no force in the preliminary objection.

4. The controversy between the parties relates to the interpretation of words mentioned in Khasra Girdawari wherein it has been stated "Lal Din son of Sharf Din Arain as Ghair Dakheel Kar paying Chaukata at the rate of Rs.160 per Killa." It is contention of the appellant that he is tenant whereas the case of the respondent is that the appellant is not tenant. The word `tenant' has not been defined in Regulation

115. On 11th May, 1973, the Land Commission of the Punjab with the approval of the President made the following provisions namely; "the, words tenant, and Revenue Court used in Para.25 of the said Regulation shall have the same meaning as assigned to these respectively in clauses (26) and (22) of section 4 of the West Pakistan Land Revenue Act, 1967". By means of the addition the definition of tenant as prescribed in the West Pakistan Land Revenue Act, shall be applicable. `Tenant' has been defined in Section 4(26) of the West Pakistan Land Revenue Act as under:‑ "4(26) "tentant" 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 predecessors and successors in interest of such person, but does not include‑ (a)

‑ (b)

‑ (c)

‑ Similar definition. of tenant has been made in Land Reforms Regulation (Punjab Amendment) Ordinance, 1982 and Punjab Tenancy Act. "Rent" has been defined in Section 4(21) as under:‑ "4(21) "rent" means whatever is payable to landlord in money or kind by a tenant on account of the use or occupation of land held by him, but shall not include any cess, or other contribution or due or any free personal service." and "Landlord has been defined in Section 4(12) as under:‑ "4(12) "Landlord." means a person under whom a tenant holds land, and to whom the tenant is, or but for a special contract, would be liable to pay rent for that land, and shall include a lessee of such person, and the predecessors and successors in interest of such person."

5. It is the contention of the respondent that "entries in Khasra Girdawari consist of two parts. If we base full year for the purposes of interpretation then it is for a fixed term. The moment it comes under a fixed term then he is not a tenant and he is at par with the lessee and the submission is fully supported by Para. 174 Volume I of Land Reforms in West Pakistan by Malik Khuda Bakhsh. In Para. 174 the Commission after careful consideration decided that tenants for fixed terms should not be considered to be tenants for purposes of Paragraph 26 of the Regulation". The contention has no force. Para. 26 of Regulation 64 is not para materia with para. 25 of Regulation 115 of 1972. There is no parallel rovision in para. 26 as contained in para. 5(3) which gives a right of pre‑emption to the tenants, therefore, the observation made by Malik Khuda Bakhsh while interpreting para. 26 of Regulation 64 is not relevant. The learned counsel for the respondent submitted that the nature of rent or mode of payment is not relevant for determining the status of a tenant. Chakota may be agreed upon between a lessor or lessee. A mere use of this word would not alter the relationship of a lessor and lessee. The learned counsel for the respondent has referred to the dictionary meaning of word "Chakota" as under:‑ "The meaning of word "Chakota" as provided in popular Oxford Practical Dictionary.‑‑fixed rents, as bargaining, a settlement attached. the meaning of word as provided in English to English and Urdu Dictionary by Ferozesons (New Edition). Contract or tenement for a specified time". He has referred to the following decisions:‑ Wali Dad v. Deputy Commissioner, Karachi and 2 others PLD 1975 Kar. 202; Illahi Bux and 3 others v. The Deputy Commissioner, Sukkur and 3 others PLD 1977 Kar. 825; Khushi Muhammad v. Government of Punjab etc. 1981 CLC 1677; Muhammad Ashraf v. Member (Revenue), Board of Revenue, Lahore and 18 others 1984 CLC 2950; Haji Ghulam Yasin and 16 others v. Muhammad Ashraf and 2 others PLD 1985 Rev. 5; Bakhtawar Shah and others v. Member, Board of Revenue and others 1985 SCMR 348; Said Hakim and another v. Shahdad and 7 others PLD 1988 Pesh. 54; Jalla v. Abdul Hayee PLD 1988 Lah. 234; Samar Khan etc. v. Safdar, etc. PLD 1989 Pesh. 102; and Hamid Khan v. Wali Muhammad and 4 others 1989 CLC 2273; Said Hakeem's case (Peshawar) supports the contention of respondent to some extent wherein it has been held that "a tenant who has been bestowed with right of pre‑emption has to be a tenant with holds land on payment of share of produce to the landlord and not the person who holds land on payment of cash rent because such a person is commonly called lessee". Not only the facts are distinguishable but definition of tenant in Land Revenue Act, 1967 does not warrant such conclusion. The other authorities are inapt. In the present case we have to consider the import of the word "Chakota". "Chakota" has not been defined either in the Land Revenue Act or in the Punjab Tenancy Act but in common parlance it means rent consisting, of a fixed amount of grain in a particular season of harvest. "Chakota" has been defined in the Punjabi English Dictionary (Page 181) "Fixed rent or any assessment, generally used when it is partly in kind". Sardar Muhammad Iqbal Khan Mokal in his commentary on the West Pakistan Land Revenue Act has referred to the Punjab Settlement Manual (Appendix‑II) at page 46 where "Chakota" has been defined as under:‑ "Lump grain rent or rent consisting of a fixed amount of grain in the Rabi, and a fixed amount of cash in the Kharif harvests." OM Parkash Aggarwala in his commentary on the Punjab Tenancy Act has referred to the history of the rent in the Punjab. At page 16 while referring to the kinds of rent, he has mentioned Chakota rent as "Lump grain rents or rents consisting of a fixed amount of grain in the spring, and a fixed amount of money in the autumn harvest. Chakota is also used to denote a lump cash rent paid on a holding. He has further elaborated this kind of rent and stated that "the small grain fee which the proprietors some times realized in the days of Sikh rule is even now very frequently set aside as a separate item when the crops are divided. In this case too the former names are used and the traditional fraction is commonly taken. Rabti rents are still paid in many places for the crops for which the Sikhs took cash payments. Chakota rents i.e. rents consisting of a fixed amount of cash in the autumn harvests have a similar history. Even fixed cash rents often originated in the revenue arrangements, but they are more susceptible, of readjustment on an economic basis than other kind of rent". (Settlement Manual, Para 206).

9. A tenancy is created not only by an express contract but also by implication or by the conduct of the parties. In the present case there is long standing custom and Chakota has been recognised as a mode of payment of rent since long. Even according to plain dictionary meaning it included rent. The appellant was holding land on payment of rent consisting of a fixed amount irrespective of the crop, therefore, for all intents and purposes, the appellant was the tenant entitled to the right of pre‑emption as provided under the law. It is in this context that he was described as such in the Revenue Record. The Revenue Courts have held that appellant is not a lessee for a fixed time but Chakota itself shows cultivating possession of land. The finding is unexceptionable. The appellant had taken this point before the High Court and his contention was repelled in the following terms:‑ "The learned counsel has made a half‑hearted attempt to show that a pataidar and a Chaukatadar is also a tenant and not a lease‑holder but he has referred to no precedent in order to show that a pataidar or Chaukatadar is in any manner different from a lessee or a lease holder. In my view these two terms denote lessees and not tenants." The learned Judge has not recorded any finding on this point. Rent has not been defined in the Regulation, but according to Land Revenue Act it may be paid in cash. In order to implement the intention of the Legislature missing definition can be borrowed from Land Revenue Act, 1967. `Rent' is to be read in the context of tenant as this word has been paid in the definition of tenant.

10. The next question is what is the effect of judgment of this Court reported as Government of N.‑W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360 ref. The position has been clarified by this Court in the subsequent judgments reported as Sardar Ali and others v. Muhammad Ali and others PLD 1988 SC 287 and Ghulam Qadir v. Nawab Din PLD 1988 SC

701. In Sardar Ali's case, it has been observed "Plaintiff having obtained a pre‑emption decree in the trial forum before 31‑7‑1986, holder of such decree could not be non‑suited on the ground that relevant law ceased to have effect on 31‑7‑1986. In the same judgment it was observed that plaintiff who having failed in the trial forum had succeeded in a higher forum before 31‑7‑1986 could not be non‑suited. In the present case, the decree by the Revenue Court in favour of the appellant was passed before 31‑7‑1986, which was confirmed in appeal, therefore, the appellant could not be non‑suited. The judgment of this Court in Rozi Muhammad v. Haji Gul Muhammad (Civil Appeal No.44 of 1988) does not apply to the facts of the present case and is distinguishable. As observed above, we have no doubt in our mind that the appellant is also a tenant. The upshot of above discussion is that this appeal is accepted, the judgment of the learned High Court is set aside and orders of Revenue Court are restored. There would be no order as to costs. A.A./L‑48/S. Appeal accepted.