2007 PLP 1566 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Both, the appeal as well as civil petition for leave to appeal, arising out of the same .judgment, are taken up together.

2. Muhammad Zarat and Muhammad Nawaz purchased land measuring 212 Kanals, in equal shares for a sum of Rs.2,29,000 through registered sale-deed, dated 2-12-1975. Akbar Ali and Mehr Din, sons of Sardar Khan pre-empted the sale which was defended by the vendees on the ground of being tenants in suit-land.

3. The learned Civil Judge, First Class, Sargodha decreed the suit on payment of Rs.2,29,000 as pre-emption money. On appeal, ''the decision aforesaid was set aside by a learned Additional District Judge, Sargodha wide ,judgment dated 22-10-1987. A partial decree was granted against Zarat to the extent of 63 Kanals while suit regarding 149 Kanals was dismissed holding that the. said portion lay under the tenancy of Muhammad Nawaz. Both the parties filed two regular second appeals before learned High Court. Vide ,judgment, dated 22-2-2001 a learned Judge in Chambers accepted the appeal of the pre-emptors, set aside the .judgment of the Additional District Judge and restored that of the Civil Judge, holding that though Muhammad Nawaz was a tenant yet the principle of sinker would apply, for, his having joined Muhammad Zarat in the sale, the latter being a stranger. The vendees have come up to this Court.

4. The learned counsel seriously assailed the impugned finding by contending that a tenant has got a superior right of pre-emption with regard to the portion under his tenancy, as granted by para.25(3)(d) of Martial Law Regulation

115. That the provisions of MLR 115 being a superior Federal law would supersede any provisions of Punjab Pre-. emption Act, 1913 and such superior right cannot be whittled down on any theory flowing from the Provincial law, especially, the principle of sinker.

5. We have closely scrutinised the arguments in the light of judgments of this Court. As a matter of fact para.25(3)(d) of A MLR 115 has granted a superior right to a tenant regarding portion of land under his tenancy. No more and no less. The only difference is that if a tenant exercises such right as pre-emptor, he would resort to the Revenue Court, which, for all intents and purposes shall exercise the powers of a Civil Court. This superior right, with effect from the promulgation of Land Reforms Regulation, 1972, shall be read impliedly as part of section 15 of Punjab Pre-emption Act, 1913. So far as the remaining principles of pre-emption, like limitation, waiver or sinker are concerned, those all shall apply to a tenant as well, whether emanating from text law or from the case-law. A tenant, therefore, if defendant, cannot escape from the clutches of the principle of sinker.

6. Learned counsel for the appellants/petitioners placed reliance upon a Division Bench judgment of this Court in Malhi Khan's case PLD 1991 SC 824 where it was held that the superior right granted to a tenant under MLR 115 cannot be defeated by attracting the principles of Punjab Pre-emption Act, 1913. We do not agree to the above verdict in presence of a full Bench judgment of ours in Muhammad Khan's case PLD 1981 SC 155, where it was settled that Martial Law Regulation 115 has only given superior host right to a tenant which, for all practical purposes, is thenceforth, to be read as a part of Punjab Pre-emption Act, 1913, We, therefore, hold that the principle of sinker would apply even to a tenant defending a suit of pre-emption.

7. Now we come to the factual aspect of the matter as to whether sinker is applicable to the facts of the present case. The learned High Court was of the view that if' Muhammad Nawaz has joined with him Muhammad Zarat, a stranger in the sale, he has to sink with that stranger. The learned High Court further was of the view and rightly so, that both having purchased the land in equal share and both being co-sharers in each and every inch of the land, the transaction was not divisible so as to save the share of Muhammad Nawaz.

8. The above discussion we have resorted to, in order only to settle a question of law with reference to the discussion adhered to by the learned High Court. Whereas, the hard fact of the matter is that both Muhammad Zarat and Muhammad Nawaz vendees are not the tenants at all. Entry in their favour as tenant was challenged by Muhammad Siddique and Asmatullah before Collector, Sargodha who vide his order, dated. 11-1-1977 categorically held that Muhammad Zarat and Muhammad Nawaz had forcibly ejected Muhammad Siddique and Asmatullah from their tenancy, with further direction that the former be proceeded against under paras.29/30 of MLR 115 (Exh.P.S pages 77 to 81). This finding was upheld by Commissioner, Sargodha Division vide his order, dated 7-8-1977 (Exh.P.10 pages 89 to 91). The defendants ?vendees went in revision (Civil Revision No.410 of 1984) before the High Court which too was dismissed on 20-2-2001, against which, Civil Petition for Leave to Appeal No.783-L of 2001 was also dismissed by a Full Bench of this Court. Muhammad Nawaz and Muhammad Zarat were not the tenants at all of the suit-land and hence had no superior right to defend.

9. Finding no merit in the appeal as well as in the petition, both are hereby dismissed. M.H./M-55/SC??????????????????????????????????????????????????????????????????????? Appeal dismissed