1986 PLP 669 (CLC)

AHMAD ALI U. QURESHI, J.‑‑This is a Constitutional Petition filed by the petitioner for declaration, that the orders passed by the respondent No. 2 on 6‑4‑1976 are without lawful authority and of no legal effect, and the respondents be permanently restrained from implementing the said orders.

2. The facts leading to this petition are, that the petitioner purchased 17 Acres and 4 Ghuntas of land in Deh 95, Taluka Mirpurkhas under registered sale‑deed on 14‑1‑1974. The respondent No. 1, Chotey Khan, claimed pre‑emption right by filing application before the tenancy Tribunal headed by Mukhtiarkar, Mirpurkhas, which was rejected on 13‑9‑1974. The appeal of respondent No.l filed before the Deputy Collector was also rejected. The matter was, however, remanded back by the learned Deputy Commissioner, Tharparkar, by his order, dated 6‑5‑1975 on the revision application. After the matter was remanded, the Mukhtiarkar/tenancy tribunal vide its order, dated 2‑9‑1975 partially allowed the claim of respondent No.l for 11‑03 Acres. The petitioner's appeal was rejected by Deputy Collector and so also his revision application by the Deputy Commissioner, Tharparkar on 6‑4‑1976. The said orders on revision application were set aside by the learned Deputy Commissioner in review application on 7‑6‑1977. The respondent No.l challenged the orders of Deputy Commissioner passed on review application in this Court in Constitutional Petition No. 450 of 1977, which was allowed by a Division Bench of this Court on 16‑9‑1980, whereby the Honourable Judges held, that the Deputy Commissioner, Tharparkar, had no powers of review and could not set aside the orders passed by his predecessor in the revision application. The order of the Deputy Commissioner, dated 7‑6‑1977 on review application was set aside and the original order of the Deputy Commissioner, dated 6‑4‑1976 was maintained. The petitioner, therefore, filed this petition challenging the said impugned order. One Muhammad Rafiq son of respondent No.l has filed his counter‑affidavit in which he claims, that respondent No.1 being the Hari had the first right of pre‑emption. No counter‑affidavit appears to have been filed for respondent No.2.

3. We have heard the learned counsel for the parties at length. This petition was dismissed by a short order, dated 16‑10‑1985.

4. The learned counsel for the petitioner was asked as to how the petitioner will benefit, even if the impugned order of respondent No.2 is set aside. The impugned order of respondent No.2 only confirms the orders in appeal by Deputy Collector, which confirms the orders passed by Mukhtiarkar and tenancy tribunal in favour of respondent No.l. Even if the impugned order is declared to be passed without lawful authority, still the original order of the Mukhtiarkar and tenancy tribunal will stand as it has not been challenged. The learned counsel was unable to satisfy the Court on this point.

5. The learned counsel for the petitioner has raised the objection, that the orders allowing the pre‑emption right of respondent No.l partially to the extent of 11‑03 Acres would be in violation of para. 24 of M.L.R. 115, as the holdings in such case of both the petitioner and respondent No. 1, would be less than the subsistence holding, which is 16 Acres. It may be pointed, that the relevant provisions of M.L.R. 115 do not impose any ban on holding of land below subsistence holding. It only bans such sale of the land, which leaves the seller with land below 16 Acres. He can either sell the entire land, or he can sell land which he owns above 16 Acres. There is no such ban on the purchaser. In the instant case the seller would not be the petitioner, but it would be the original seller, who sold 17.04 Acres to the petitioner. There is nothing on record to show, that the sale by the original seller was hit by M.L.R.

115. If it is hit by M.L.R. 115, then even the petitioner does not acquire any right in any part of the land. The right of pre‑emption is mere substitution for one of the parties to the transaction and is not a fresh or separate transaction. Therefore, proviso to sub‑para. 4 of para. 24 of M.L.R. 115 would not be attracted, as the vendee judgment does not alienate by sale, mortgage, gift or otherwise, any part of this holding. The learned counsel for the respondent has relied upon P L D 1975 Lah. 628, wherein similar view has been taken by the learned Single Judge of Lahore High Court. It may be pointed, that it is not even contended, that the respondent does not own other land in the same Deh. Furthermore, the original seller had sold 17.04 Acres. Thus, he had more than subsistence holding and as such para. 4 even otherwise was not applicable in this case. This objection of the learned counsel is of no avail to the petitioner.

6. The second objection of the learned counsel for the petitioner is, that the Sind Land Commission Pre‑emption Rules, 1974, came into force on 8‑2‑1974, whereas, the instant sale took place on 14‑1‑1974, and as such these rules were not applicable to the present case. It may be pointed, that the right of pre‑emption accrued to the tenant under para. 3(d) of M.L.R. 115, which came into force in 1972. The relevant provision reads as follows:‑

"

3. As from Kharif 1972:‑

(d) Subject to the other provisions of this Regulation, tenant shall have the first right of pre‑emption in respect of the land comprised in his tenancy."

7. Thus, the right of pre‑emption accrued to the respondent No.l from Kharif 1972, much earlier to the transaction which was in 1974.

8. It is a question of fact, as to whether respondent No.l was a Hari of the land or not. There is concurrent findings of the tenancy tribunal, the Deputy Collector in appeal as well as of the Deputy Commissioner in revision application in favour of the respondent No.l. There is no evidence to contrary produced before us. This Court, in l constitutional petition, does not set aside concurrent findings of fact arrived at by the competent authorities unless such finding is shown to be perverse or is based on misreading of evidence. In the instant case, we do not find such misreading of evidence. The impugned order is absolutely in accordance with law and fact. As such there is no merit in this petition, which is dismissed. The petition was dismissed by a short order, dated 16‑10‑1985. The above are the reasons which we have recorded in support of the order, dated 16‑10‑1985, dismissing the petition. H . B . T .???????? Petition dismissed.