2002 PLP 1660 (YLR)

(a) a mortgagee of the rights of a land owner; or (b) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the provisions of this Act, for the recovery of an arrears of land revenue of a sum recoverable as such an arrears; (c) a person who takes from Government a lease of unoccupied land for the purpose of subletting it; The word tenant is also defined in section 4 subsection (5) of the Punjab Tenancy Act, 1887 as follows:‑‑‑ "(5) 'tenant' 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; but it does not include:‑‑‑ (a) an inferior landowner, or (b) a mortgagee of the rights of a landowner, or (c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887, for the recovery of an arrear of land revenue or of a such an arrear, or (d) a person takes from the Government a lease of unoccupied land for the purpose of subletting it;" Thereafter, Ordinance No. V of 1982 was promulgated when a new clause (13) was added in para. 2 of the Land Reforms Regulation, 1972, which reads as follow:‑‑‑ "(13) 'tenant' 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) .. (d) a lessee, whether cultivating the land himself or through another person."

7. The case of the petitioners defendants was that the land in possession of the petitioner was on lease under one Mst. Rashida Begum. Khasra Girdawari Exh. P.5 is on the file. It clearly indicates that Muhammad Afzal son of Muhammad Sharif is in possession of the land being lessee under Rashida Begum. It is true that in case of Muhammad Yousaf (PLD 1976 Lah. 328) (supra) it was held by the learned Judge of this Court that a lessee, who cultivates the land himself, would also be regarded as a tenant for the‑purpose of para. 25 of the' said Regulation, but, as indicated in the case of Muhammad Ashraf v. Member. Board of Revenue Punjab, Lahore etc. (1984 CLC 2950), the view taken in the case of Muhammad Yousaf was dissented from by a learned Single Judge of this Court, in which it was ruled that the tenant contemplated in para. 25 did not include a lessee. Same opinion was expressed by the Hon'ble Supreme Court of Pakistan in case of Abaad Ali and others v. Muhammad Din (1981 SCMR 742) and observed:‑‑ "Muhammad Din' case is that he is a tenant and is, therefore, entitled to pre‑empt the sale under the provisions of Martial Law Regulation No.

115. A learned Single Judge of the High Court came to the conclusion that the present petitioners were able to prove by oral evidence only that they were lessees in respect of the fruit of the garden. Under Martial Law Regulation No.115 the definition of the term 'tenant' appearing in the West Pakistan Land Revenue Act has been adopted. This is an admitted position. The liability to pay rent is the main condition for becoming a tenant. No evidence was led in the present case to show that there was any liability to pay the rent. There was, therefore, no proof that the petitioners were the tenants. Not being tenant was visualized by the Martial law Regulation No. 115 they cannot take advantage of its provisions which give the right of pre‑emption to a tenant." In case of Faqir Muhammad and others v. Muhammad Rafique and others (198) CLC 1028) the distinction has been brought in the expression 'tenant' and 'lease holder' and it has been ruled that:‑‑‑ "Lease‑holder of land has right altogether different from those of tenant‑‑‑Lease‑holder in fact stands in shoes of owner and even is liable for Government dues regarding land while tenant is not‑‑‑‑'Lessee' would remain a 'lessee' and would not be covered by definition of 'tenant' whether he cultivated land himself or employed other person as tenants for purpose of cultivation." In case reported as Jalla v. Abdul Hayee (PLD 1988 Lahore 234) while interpreting para. 25 of the Land Reforms Regulation, 1972 (M.L.R. 115) it was ruled that 'lessee' is not entitled to claim benefit of para. 25 of Regulation, 1972 and thus could not claim first right of pre‑emption. In case reported as Abdul Rauf Khan v. Muhammad Hanif (1990 ALD 690 (1), the provisions of Land Reforms Regulation, 1972 (M.L.R.115) alongwith para. 25 as amended by Land Reforms Regulation (Punjab Amendment) Ordinance (V of 1982) was interpreted and it was ruled that the lessees having specifically been excluded from definition of tenant, could not claim any right of pre‑emption and it was also ruled that the amending Ordinance (V of 1982) of the Land Reforms Regulation, 1972 (M.L.R. 115) was retrospective in nature and all amendments which are declaratory and clarificatory in character, are to be construed as retrospective. In view of the above discussion, this writ petition is allowed. The decree granted to the predecessor of the respondents, namely, Muhammad Afzal by the Revenue Authority is declared to be of no legal effect. There shall be not order as to costs. Petition allowed. Q.M.H./M.A.K./S‑446/L