P L D 1977 Karachi 825 (PLP)

Taza Gul v. Saeed Ghulam P L D 1967 Pesh. 76 ref. Fazle Ghani Khan for Petitioners. Nemo for Respondent No.

1. Muhammad Naimur Rehman for Respondents Nos. 2 and

3. Date of hearing : 28th April 1977. Z. A. CHANNA J.‑The dispute in this writ petition relates to agricultural land bearing Surveys Nos. 367, 368, 8^18 and 849, in Deh Kundiwala, Taluka Ubauro, District Sukkur. The lanai in dispute originally belonged to one Kalandatbu: Daher, who is said to have leased out the same to one Mir Muhammad from the year 1971‑72 up to the year 1976‑

77. During the subsistence of this lease, Kalandarbua sold the said land to respondents 2, 3 and 4, namely Imambua, Vali Muhammad and Machero, for a consideration of Re. 20,000, by a registered deed, dated 18‑8‑1973. The petitioners, who claim that they were Haris of the said land at the time of sale, have alleged that the sale took place without their knowledge and consent, despite the fact that they had right of pre‑emption in respect of it under the provisions of paragraph 25 of M. L. R.

115. They, therefore, filed an application with the Mukhtiarkar Ubauro, acting as Tribunal under the Sind Land Commission '(Pre‑emption) Rules, 1974, which have been framed under paragraph 6 of M. L. R. 115, claiming right of pre‑emption lit the land. The learned Tribunal, relying mainly on the evidence of the Tapedar that the land had been developed by the petitioners who are Haris thereof and have installed a tube‑well and that the respondents have never remained Haris of the land, allowed the petition and, set aside the sale in favour of the respondents. On peal to the Assistant Commissioner, Mirpur Mathelo, be, after record the evidence of the respondents herein, the petitioners and some other witnesses who claim to have been the original Haris of the land, upheld the order of the learned Tribunal, manly on the basis of the entry in the Khasra Girdawari, showing that the petitioners grad remained as Haris or the land in question from 1573‑74 to 1974‑

75. Respon dents 2, 3 arid 4 thereupon went up in revision to the Deputy Commissioner, Sukkur who, while holding that the petitioners had 'remained Haris of the land in question for the 2 years 1X/3‑74 and 1974‑75, carne to the conclusion that the respondents had not remained as Haris of the survey numbers under revision "in any year", and accordingly allowed the revision and held that the sale in. favour of the respondents wag proper. It is this order which has been impugned by the petitioners in this petition.

2. Mr. Fazle‑Ghani, the learned counsel for the petitioners, has assailed. the Impugned order of the first respondent on the ground that it is contradictory and that the finding that the petitioners are nit entitled to right of preemption in respect of the survey numbers in question is contrary to the evidence accepted by high. Elaborating his arguments, the learned counsel contended that under paragraph 25 of the M. L. R. 115, the right of preemption accrues to a person who is tenant of the land at the time of its sale. The learned counsel submitted that the first respondent himself has found, on the basis of the entries in the Khasra Girdawari Register, which register he has characterised in his order to be the basic document for the purposes of right of pre‑emption under M. L. R. 115. that the petitioners were the Haris of the survey numbers in question for the years 1973‑74 and 1974‑75, and that on this finding he should have held that the petitioners were entitled to right of pre‑emption. The learned counsel invited our attention to the true copies of the entries from the Khasra Girdawari Register appended to the petition, which show that the survey numbers in question were cultivated by the petitioners during Kharif 1973 and Kharif 1974 and they were the Haris of the said survey numbers for the years 1973‑74 and 1974‑

75. According to paragraph 2 of the Standing Orders ‑of the Commissioner in Sind, the Kharif season starts from 1st April and lasts up to 30th Septem ber. If therefore,. the petitioners were Haris of the survey numbers in question for Kharif 1973, as shown in the Khasra Girdawari, they clearly were Haris of the said survey numbers on 18‑8‑t973, when sale of this land was effected. The first respondent, in his impugned order, has observed, after accepting the fact that the petitioners herein were Haris of the survey numbers in question during 1973‑74 and 1974‑75, that before the sale trans action they have not remained Haris of these survey numbers "in any year". This observation is far from clear. If by it the first respon dent meant that the right of pre‑emption under paragraph 25 of M. L. R. 115 in respect of any land accrues only to such person who has remained as its tenant or Hari for at least a year before the land is sold, then he is clearly misreading the provisions of the said paragraph. As already pointed out, the right of pre‑‑emption under the above paragraph accrues to a person who is tenant of the land at the time of its sale, irrespective of the period for which he was the tenant prior to the sale. If, on the 't other hand, the first respondent had taken the view that the petitioners were not the Haris of the survey numbers in question at the time of their sale, then this view was clearly contradictory to his earlier finding that the petitioners were Haris of the survey numbers in question for the years 1973‑74 and 1974‑75.

3. Mr. Naimur Rehman, the learned counsel for respondents Nos. 2 to 4, attempt to show us that there was ire fact no contradiction in the findings of the first respondent. His contention was that though admittedly the petitioners were shown in the Khasra Girdawari Register to be Haris of the survey numbers in question for Kharif 1973, yet this did not establish the fact that the. petitioners were the Harts of the survey numbers iii question for the whole of the Kharif season 1973, or even on the date of sale of the land; for the entries in the Khasra Girdawari are made on the basis of Partal, and according to the orders of the Commissioner, as reported by the Mukhtiarkar Ubauro. Partal for Kharif season is to be done between 15th September and 31st October. The learned counsel for respondents 2 to 4 accordingly contended that the entries in the Khasra Girdawari showing that the petitioners .were the Haris of the land in Kharif 1973 merely showed that they were Haris thereof or; or about 15th September 1973. He find no substance in this contention. If in fact some other persons had sown the Kharif crop in the survey numbers in question and the petitioners had come thereon much later, then the names of those persons would have been shown as Haris in the Khaara Girdawari, for it is the person who sows the crop on a survey number is shown in the Khasra Girdawari as its Hari. Furthermore, if for the substantial part of Kharif 1973 there were other Harts in respect of the survey numbers in question, then either the said Harts must have left or been turned out before the Tapedar made the Partal. Now a tenant cannot be evicted from his tenancy except through the Revenue Court and for one or more of the causes specified in clause (1) of paragraph 25 of M. L. R,

115. It is not the case of respondents 2 to 3 that the previous Haris were evicted through the Revenue Court nor was tiny such material produced before the first respondent. There was equally no material before him that the previous Haris left in tree middle of Kharif 1973 season. In fact it would be most unusual for a Hari to leave in the middle of a season, after he had put in substantial labour in preparing the land and sowing the crop. The case of respondents Nos. 2 to 4 before the lower Tribunal was that the petitioners at no time were .the Haris of the survey numbers in question arid they had given statement to that effect before the Assistant Commissioner, Mirpur Mathelo.‑ This evidence, however, was not believed by the first respondent, who relied upon the entries in the Khasra Girdawari showing that the petitioners were the Haris of the survey numbers in question for the years 1973‑74 and 1974‑75.

4. It was neat contended by the learned counsel for respondents Nos. 2 to 3 that even if it is Acid that the petitioners were the Harris of the survey numbers in question at the time of their sale on 18‑8‑1973, they were not entitled to right of pre‑emption as they ware not tenants for the purposes of paragraph 25 of M. L. R

115. The precise argument was that the petitioners at the utmost were the Haris of Mir Muhammad, to whom the land had been leased out by Qalandur bux, and therefore Mir Muhammad would be deemed to be tenant of the land for the purposes of paragraph 25 of M. L. R. 115, while the petitioners would be mere tub‑tenants who have not been conferred the right of pre‑emption under M. L. R.

115. In support of the contention that the les3de Mir Muhammad is to be deemed to be tenant for the purposes of paragraph 25 of M. L. R. 115, the learned counsel sought to rely upon the notification, dated 22‑8‑1973, of the Sind Land Commission, issued sander paragraph 4 (81 of M. L. R. 115 to the effect that the words 'tenant' and 'Revenue Courts' used in paragraph 25 of the said Regulation would have the meaning assigned to them is the West Pakistan Land Revenue Act, 1947. Since the said notification was issued after 18‑8‑1973, when the right to pre‑emption of the petitioners accrued, it would not be applicable to the case of the petitioners. Moreover, the question whether a lessee of land can be deemed to be its tenant for the purposes of M. L. R. 115 was considered by a Division Bench of this Court in Wali Dad v. Deputy Commissioner (P L D 1975 Kar. 202), wherein it was held, on an exami nation of the provisions of paragraph 25 of M. L. R. 115 and after taking into consideration the press note issued by the Sind Land Commission. which has been published in the Gazette of Sind, Extra Ordinary. Part I, dated 30th August 1973, clarifying that the word 'tenant' as used in paragraph 25 of the M. L. R 115 does not include a lessee who is covered by the definition of 'Landlord' as given in West Pakistan Land Revenue Act, 1967, that a tenant for the purposes ref the said Regulation does no include a lease "but clearly means a cultivator of Hari". We are in respectful agreement with this view.

5. It was finally contended by Mr. Naim‑ur‑Rehman that the right of pre‑emption is the right of substitution and that the petitioners at best would be entitled to the right of the lessee, Mir Muhammad, that is the right to have lease of the land for tire period during which the lease in favour of Mir Muhammad was is subsist. In support of his contention. the learned counsel sought to rely on the decision in Taza Gul v. Saeed Ghulam (P L D 1967 Pesh. 76). That decision, however, dues not support the contention of the learned counsel and in fact is against it. It was held in that case, on the basis of the decision reported in 7 All. 775, that the right of pre‑emption is nothing more and nothing less than the substitution of a pre‑emptor for the vendee and that the pre‑emptor, after having been substituted for the vendee, steps into the shoes of the transferor and as such sue; Beds in entirety in his right, title, interest and obligations. The rights of the vendees in the instant case are the rights acquired by them on the basis of the deed executed In their favour by the original owner of the land, Qalandarbux, since, by the right of pre‑emption, the petitioners are entitled to step into the shoes of the vendees, they are entitled to the right of ownership in the land in question and not merely the right of the lessee, Mir Muhammad. Furthermore, one of the objects of M. L. R. 115 is to give an opportunity to the landless tenants to acquire land comprised in their tenancies. This object would be completely frustrated if we were to accept the contention of the learned counsel for respondents Nos'. 2 and

3. The object of sub‑clause (d) of o clause (3) of paragraph 25 of M. L. R. 115, in our opinion, is to give a right to the tenant to acquire the rights of the owner of the land, in respect of the land comprised in the former's tenancy, whenever the latter sells the land. Of course, the tenant cannot acquire better rights than the owner of the land and hence if the title of the owner is either defective or is subject to certain limitations, the tenant will b9 entitled to the land subject to those defects and limitations, as hold in Taza Gul's case.

6. For the reasons stated by us above, we are of the opinion that the impugned order of the first respondent is invalid. being contrary to the evidence which was accepted by him. We would accordingly quash the same and restore the orders of the learned Mukhtiarkar, Ubauro, and the learned Assistant Commissioner, Mirpur Mathelo. In the result, the petition is allowed with costs, S. A. H. Petition allowed.