1987 PLP 111 (SCMR)

‑‑‑Art. 185(3)‑‑Land Reforms Regulation, 1972 (M.L.R. 115), Para. 25‑‑Leave to appeal granted to consider tenant's right of pre‑emption with regard to part of land recorded as Ghair Mumkin Khundar and land in respect of which there is no indication of payment of rent by tenant. Bakhtawar Shah and others v. Member, Board of Revenue and others 1985 S C M R 348 and Abaad Ali and another v. Muhammad Din 1981 S C M R 742 rel. Raja Muhammad Akram, Senior Advocate Supreme Court with M. Afzal Siddiqi, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 1st November, 1986. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment dated 12‑3‑1985 of the Lahore High Court; whereby petitioner's Constitutional petition challenging a decree passed in favour of the plaintiff‑pre‑emptors by the Revenue Authorities, was dismissed. The petitioner (defendant‑vendee) purchased about 281 Kanals of land. A suit for pre‑emption was filed by Farman Ali and Ajaib respondents on the ground that the said land was under their tenancy, and therefore, they had first right of pre‑emption under paragraph 25 of Martial Law Regulation No.115 of 1972. The Collector accepted the plaintiffs' claim regarding about 140 Kanals and decreed the suit to that extent accordingly. On the petitioner's appeal the Additional Commissioner held that there was no evidence to show that the plaintiff's were the tenants on the date of the decree, therefore, the vendee's (petitioner's) appeal was allowed and pre‑emptors, suit was dismissed in its entirety. On plaintiffs' revision a learned Member, Board of Revenue reversed the order of the Additional Commissioner and restored the order of the Collector. The petitioner vendee then moved the High Court in its Constitutional jurisdiction. His petition having been dismissed, he has now sought leave to appeal. It was admitted from respondent‑pre‑emptors' side during the trial that except for 11 Kanals 9 Marlas the remaining land out of 140 Kanals was never cultivated by the plaintiffs and that it was ghair‑mumkin khundar. There was also documentary evidence in the revenue records to show that the said land was ghair‑mumkin khundar, That being so, learned counsel for the petitioner has argued that the respondents No. 1 and 2 (plaintiffs) could not be treated as tenants on the said land as visualised by paragraph 25 of the M.L.R.

115. He has further urged that the mere entry of tenancy in the Khasra Girdawari without an indication of payment of rent would also lead to the same results. In support of these two propositions he has placed reliance on Bakhtawar Shah and others v. Member, Board of Revenue and others 1985 SCMR 348 and Abaad Ali and another v. Muhammad Din 1981 S C M R

742. Prima facie these judgments support the contentions of the learned counsel. Leave to appeal accordingly is granted. Security Rs.2,500.‑ Status quo as to possession shall be maintained regarding the land in dispute (11 Kanals 5 Marlas maira land out of which it is admitted by the learned counsel, is under cultivating possession of the respondent‑plaintiffs). M. I. Leave granted.