1992 PLP 1605 (SCMR)

The facts of the case are that Abdul Jalil appellant herein alongwith Noor Muhammad respondent No.2 purchased occupancy rights in land measuring 28 kanals 14 marlas comprised in khasras Nos.628, 629, 625 and 630 situated in the area of village Sanjiala, Tehsil Haripur vide Mutation No.1128 attested on 16‑8‑1973 from Syed Din Muhammad occupancy tenant for a sum of Rs.8,000 which gave rise to pre‑emption suit filed by Muhammad Hussain plaintiff/respondent‑1 herein on the ground of contiguity and participation in immunities and appendages such as right of way and right to discharge water. The suit was contested by the defendants/vendees and they in their written statement denied the superior right of pre‑emption of the plaintiff/respondent No.1 and it was also averred that Noor Muhammad vendee/respondent No.2 had alienated his half share in favour of Abdul Jalil vendee/appellant vide Mutation No‑7 attested on 8‑1‑1975 in recognition of his superior right of pre emption. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Judge, vide his judgment and decree dated. 6‑4‑1978, partially decreed the suit of the plaintiff/respondent No.1 with regard to Khasras Nos.628, 629 and 630 in lieu of Rs:4,267. while his suit with regard to Khasra No.625 was dismissed. Not content with the‑same, Abdul Jalil defendant/appellant preferred appeal before the learned Additional District Judge(1), Haripur who, too, vide judgment and decree dated 23‑4‑1987, maintained finding of the trial Court and dismissed the appeal. A revision petition was filed in the Peshawar High Court by the appellant through his heirs which, too, met the same fate vide the impugned judgment dated 19‑5‑1991. Hence the instant appeal through leave of the Court. We have heard Mr. Fida Muhammad Khan, Advocate, for the appellant, Mirza Anwar Baig, Advocate, for respondent No.1, and have perused the recordaof the case. The perusal

12. Persons entitled to pre‑empt.‑‑The right of pre‑emption in respect of agricultural land, village immovable property and urban immovable property shall vest: firstly in the co‑sharers in such land or property, if any; secondly in a participator in immunities, appendages such as a right of way or a right to discharge water; thirdly in owners of contiguous property, if any; fourthly in a landlord when the sale is by an occupancy tenant of his right in tenancy." The right of pre‑emotion is defined in section 4 of the Act ibid as follows:‑ "

4. Right of Pre‑emotion.‑‑‑The right of pre‑emotion shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other person, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosure of the right to redeem such property." Agricultural land is defined in section 3 as land as defined in the Punjab Alienation of Land Act, 1900, as amended by Act I. of 1907, but shall not include the right of a mortgagee, whether usufructuary or not, in such land. Land, as per section 2(3) of the Alienation of Land Act, means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or 'for pasture, and includes * * * * * * * * * * * * * * * * (I) any right of occupancy. The thrust of the arguments of the learned counsel for the appellant is that since the right of occupancy is included in the definition of land, they were pre‑emptible under the provisions of the N.‑W.F.P. Pre‑emotion Act, 1950_ and as a necessary corollary thereto the occupancy tenant, have right of pre emption under section 12 of the Act ibid. There is no cavil with the proposition that occupancy rights in the land sold are subject to the right of pre‑emotion of the persons entitled to pre‑empt as enumerated in section

12. Consequently, the co‑occupancy tenants of the vendor have been conferred upon the right of pre‑emotion under clause firstly of the aforementioned section. Since the appellant is not a co‑sharer in the occupancy rights sold, he cannot claim right of pre‑emotion under clause firstly. His claim is that he is owner of continguous property being occupancy tenant in continguous land. Clause thirdly confers right of pre‑emotion in the owners of contiguous property. As stated earlier Khasra No. 156 in village Chhajjian, the adjoining estate is contiguous to suit Khasras Nos. 928, 929 and

930. According to the Fard Jamabandi of Khacra No. 156 referred to above copy Exh.DW3/2 on the file Mst. Neelam Khatoon and others are recorded as owners in the ownership column while Central Government is occupancy tenant on account of being the successor‑in‑interest of the non‑Muslim evacuees and ultimately vide Mutation No‑1329 Abdul Jalil appellant has become occupancy tenant through purchase on 29‑8‑1972 prior to the sale in question. Obviously there cannot be dual ownership of agricultural property. Either the persons mentioned in the ownership column ate to be considered as owners and the occupancy tenants as tenants under them or if the occupancy tenants are declared as owners as is canvassed by the learned counsel for the appellant, then the owners mentioned in the ownership column shall ipso facto lose their ownership rights. According to the Oxford English Dictionary owner means one who owns or holds something as his own; a proprietor; one who has the rightful claim or title to a thing (though he may not be in possession). On the other hand, occupancy is defined in the said dictionary as the condition of being an occupant; the fact of occupying; the act of taking or fact of holding, actual possession, esp. of land (the taking possession of something not belonging to any one, as constituting a title to it); actual holding of or residence in a place. Occupancy tenant is not defined in the Punjab Tenancy Act. However, a tenant is defined as 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. Under section 5 of the: Act ibid, however, the tenants having rights of occupancy have been enumerated in clauses (a), (b), (c) and (d), and obviously they do not fall within the definition of owner. Under the other provisions of the Act, they are required to accept the owners as landlords and under section 38 thereof if they fail, for more than one year and without sufficient cause, to cultivate their tenahcy either by themselves or through some other persons, and to arrange for payment of the rent thereof as it falls due, the right of occupancy extinguishes. It is thus apparent that the occupancy tenant cannot, by any stretch of imagination, be termed as owner of the land comprised in khasra No.156 in his possession as occupancy tenancy and cannot claim the right of pre‑emotion under clause thirdly of section 12 being owner of contiguous property. Somewhat similar controversy came up for consideration before this Court in the case of Sikandar v. Sultan Muhammad in Civil Appeal No.24‑P of 1970 decided on 2‑5‑1973 against the judgment of the Peshawar High Court (PLD 1974 SC 11) wherein it was held that a pre‑emptor who is not full owner of contiguous house but has mere Haquq‑e‑Bashindgane Dawami (right of permanent residence) has no superior right of pre‑emotion under section 12 and that milk or ownership of shufee (pre‑emptor) in the house sought to be pre‑emoted is necessary and that Haquq‑e‑Bashindgyane Dawami is not full proprietary interest. The dictum as summarised in the report is quoted below for ready reference:‑‑ "As against this the Patna High Court has consistently held that right of pre‑emption does not extend to the transfer of Moqarari tenancy interests because the pre‑emptor must have the Milkiat or ownership in the property on account of which he claims the right of pre emption, vide Mohammad Jamil and others v. Khub Lal (2), Dhirakshan Singh v. Triloki Prashad Singh and others (3) and Phul Mohammad Khan and another v. Qazi Kutabuddin (4)." In the case of Ahmad and others v. Ghulam Haider (1972 S.C.M.R. 357) icy a pre7emption matter, the word `owner' was explained as follows:‑‑ "We are not concerned with the definition of `owner' given in the Martial Law Regulation No.04 or in the Bombay Land Revenue Code or, in the, West Pakistan Land Revenue Act, 1967; but we are here concerned the question as to who is to be treated as an owner within the meaning of section 15 of the Punjab Pre‑emption Act. This Act does not define an `owner' and, therefore, the ordinary meaning of an owner', namely, a person possessing full proprietary rights over the land has to be accepted." For the reasons advanced above, Abdul Jalil appellant had no right of pre‑emption on, the basis of contiguity to non‑suit the plaintiff‑respondent Muhammad Hussain who had proved himself to be owner of contiguous property bearing khasra No. 1244 and the judgments of the lower forums decreeing his suit for pre‑emption do not suffer from any legal infirmity. `Conseqti6tly, finding no merit in the instant appeal, the same is dismissed with no order as to costs. 'A.A'/A‑949‑/S Appeal dismissed.