P L (PLP)

Abdur Rehman Khan for Respondent No.1. Date of hearing: 23rd January 1988. By this single order I propose to dispose of Civil Revision Petitions Nos.155, 156, 158 and 159, all of the year 1982, as common question of law and facts arise in them.

2. By two separate mutations, bearing Nos.1944 and 1945, Said Hakim purchased land in Khasra Nos.529 and 530, situated in village Jhungara, Tehsil and District Mardan. He then, by mutation No.1947, attested on 17‑4‑1978, conveyed that land to his son Sherzada by way of 'Tamleek'. Since the sale was through two separate mutations, Shahdad instituted two pre‑emption suits against the vendee as well as his transferee on the grounds of co‑sharership participation in the amenities and appendages and contiguity. The sale amount mentioned in the sale mutations was also disputed by him. He also claimed that the further transfer of the suit land by Said Hakim in favour of his son Sherzada was ineffective against his rights.

3. The aforesaid sale was also pre‑empted by Qudratullah in two separate suits on the same grounds as taken up by Shahdad rival pre‑emptor. The sale consideration was also disputed by him and also the subsequent transfer effected in favour of Sherzada.

4. The aforesaid four suits were consolidated by the learned trial Judge and in two suits the evidence was separately recorded.

5. The suits were contested by the vendee‑defendant and his transferee. The rival pre‑emptors also disputed the claim of each other in respect of the preferential right.

6. Many issues, legal as well as factual, were framed and on the conclusion of the proceedings the learned trial Judge, vide the judgment and the decree dated 3‑9‑1980, decreed the suit in favour of both the rival pre‑emptors in equal share on payment of the price mentioned in the decrees. Dissatisfied with the decrees of the learned trial Judge, the vendee as well as his transferee took out appeals to the Court of learned District Judge, Mardan. The appeals filed before the District Court were heard by a learned Additional District Judge of that Court, who while concurring in the finding‑i of the learned trial Judge, vide judgments and the decrees dated 3o‑3‑1982, dismissed those appeals. The vendee and his transferee have filed these revision petitions from the decrees passed in appeals.

7. Mr. Samiullah Jan, Advocate appeared on behalf of the petitioners. Mr. Abdur Rehmad Khan, Advocate appeared on behalf of Shahdad respondent. The learned counsel representing the legal heirs of Qudratullah respondent was, however, not present in Court.

8. The learned counsel for the petitioners had raised two arguments before me one relating to limitation and the other relating to tenancy. It has been urged by the learned counsel on the point of limitation that since on the back of the relevant sale mutations statements of the vendors in respect of the sale in question had been recorded on 16‑1‑1978, the sale in dispute would be taken to have completed on that date and the limitation, therefore, started to run against the pre‑emptors from that date and the suits having not been brought within one year from that date were certainly barred by time. He further submits that Said Hakim vendee was also in possession of the suit land and this possession being that of vendee should have put the pre‑emptors on guard and they were therefore bound to file pre‑emption suits within one year of the date already mentioned. There is no truth in the assertions made by the learned counsel for the petitioners. So far as his first argument is concerned, the matter stands concluded by the judgment of the Supreme Court in Gharib Shah and others v. Zarmar Gul P L D 1984 S C 188 wherein it has been laid down that the time shall run in similar circumstances from the date of attestation of sale by the Revenue Officer by an order made in conformity with the provisions of section 42 (6)(7)(8) of the West Pakistan Land Revenue Act, 1967. In view of this authority the decision of the learned Courts below that the time would run from the date of attestation of sale mutation by the Revenue officer, was correct and calls for no interference. In regard to the other argument of the learned counsel for the petitioners, suffice it to say that there is nothing on the record to show that the possession of Said Hakim on the suit land prior to the date of attestation of sale mutations was that of vendee. He was recorded in the Revenue record as holding possession on payment of yearly rent in cash. Such a possession was not that of a vendee, hence of no use to him for the purpose of the point; urged before me.

9. Coming to the other argument of the learned counsel for the petitioners that the original vendee of the suit land, namely, Said Hakim, being a tenant‑at‑will, had a right of pre‑emption superior to that possessed by the pre‑emptors, and that both the Courts below were not right in treating him as a lessee and therefore deciding the suits in favour of the pre‑emptors, I would say that it is without substance. It is true that in the Revenue record (Jamabandi of 1970‑71 and the subsequent Khasra Girdawari) Said Hakim has been entered as "chair Dakhilkar', but he was holding possession of the land on payment of yearly cash rent of Rs.50 per Jarib, as mentioned .in column of 'Lagan' of the Jamabandi of 1970‑71 (Ex. PW 1/1). In his statement in Court Said Hakim calls himself as 'Muzarea' without specifying in what form, cash or produce, the rent was paid by him to the landlords. There is no other evidence available on the record to show that the entry made in the Jamabandi of 1970‑71, to which presumption of truth attaches with respect to payment by him of rent in cash was wrong and that the rent 'payable and actually paid by him was in the form of share of produce. Taking, therefore, the evidence as a whole the only conclusion derivable would be that Said Hakim, the original vendee, held the possession of the land in suit on payment of yearly cash rent of Rs.50 per Jarib. Taking it to be so, the learned counsel for the petitioners contends that since under the N.‑W.F.P. Tenancy Act the tenancy could be held on payment of rent in cash or kind, Said Hakim, in view of this law, is to be regarded as a tenant for all purposes, as also for the purposes of paragraph 25 of the Land Reforms Regulation, 1972. I am afraid, this interpretation put by the learned counsel for the petitioners on the word 'tenant' as used in paragraph 25 of the Land Reforms Regulation, 1972 is not correct. In my view a tenant who has been bestowed with the first right of pre‑emption under clause (d) of sub‑paragraph (3) of paragraph 25 of the Land Reforms Regulation, 1972 has to be a tenant who holds the land on payment of the 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 a lessee, who has been expressly excluded from the scope of the word 'tenant' in the definition added to the Land Reforms Regulation, 1972 by the Land Reforms (North‑West Frontier Province Amendment) Ordinance, 1981. Even before the N.‑W.F.P. amendment came into force this intention of the framers of the Land Reforms Regulation, 1972 was clearly spelled out when in sub‑paragraph (2) of paragraph 25 of the Regulation, the words used related to the apportionment of the crop between the tenant and the landlord. Similarly, in sub‑paragraph (3) of paragraph 25 aforesaid, the liability to pay taxes, water rate, seed, etc. was placed on the owner of the land and not on the tenant but in the case before me, as is obvious from the unrebutted entries made in column of 'Lagan' of the Jamabandi 1970‑71, Said Hakim was also paying land revenue as well as water rates besides the cash rent which he was paying to the landlords. He, therefore, was not to be regarded as a tenant intended by paragraph 25 of the Land Reforms Regulation, 1972 so as to claim benefit thereunder, nor could his transferee lay such a claim. In this view of the matter, I am supported by a decision of this Court in Civil Revision No.53 of the year 1984, decided on 24‑11‑1984, which has been upheld by the Supreme Court while refusing leave in Civil Petition for Leave to Appeal 55/P of 1985, decided on the first April, 1987.

10. For the foregoing reasons, all the aforesaid four revision petitions, being without merit, are hereby dismissed. Since the question of interpretation of law was involved in these petitions, I make no, orders as to costs. A.A./591/ P Revision petitions dismissed