P L D 1995 Lahore 178 (PLP)

This petition under Article 199 of the Constitution of Islamic Republic of Pakistan calls in.question the validity of the order dated 29-2-1.988 of the Member (Judicial), Board of Revenue, Punjab whereby the revision petition filed by Ghulam Farid, petitioner against the order of the Additional Commissioner (Consolidation), Faisalabad accepting an appeal from the pre emption decree in favour of the petitioner passed by Assistant Commissioner/Collector, Toba Tek Singh was dismissed.

2. A concise statement of the facts is as under:-- The disputed land measuring 97 Kanals and 9 Marlas situated in Chak No.257/GB, District Toba Tek Singh was allotted to respondent No.6 Ayub Shah as Terbala Dam effectee. The proprietary rights of the land were granted to him on 9-5-1982 through Mutation No.337. The same day, Ayub Shah sold this land to Javaid Aslam and Pervaiz Aslam respondents Nos. 4 and 5 for an ostensible sale price of Rs.2,50,

000. The petitioner Ghulam Farid brought a suit for pre-emption on the ground that he was tenant in possession of the land. The Assistant Commissioner/Collector, Toba Tek Singh granted him the decree which was set aside in appeal by the Additional Commissioner (Consolidation) on the ground that neither the petitioner was a tenant over the suit land nor the transaction was pre-emptable. The Member (Judicial) Board of Revenue agreed with the findings of the Additional Commissioner and dismissed in limine the revision petition filed by Ghulam Farid.

3. The petitioner-plaintiff has contended that the Additional Commissioner and Member, Board of Revenue both erred in law and fact. They, according to him, failed to appreciate the oral and documentary evidence which adequately established pre-emptibility of the suit land as well as his tenancy over the suit land at the time of sale in question.

4. The controversy, though brief, is two-fold. On the one hand the parties are at variance regarding the possession and tenancy rights of the petitioner while on the other hand the application of law of pre-emption over the suit land is also in dispute. The contention of the vendee-defendant is that prior to the allotment of the suit land to Ayub Shah, the vendor, the land was owned by the Provincial Government and as such the suit was barred by section 9 of the Punjab Pre-emption Act, 1913; secondly, that Ayub Shah was himself an allottee having the status of a tenant under the Provincial Government till 9-5-1982 the date on which he was granted proprietary rights; and that the Colonization of Government Lands Act, 1912 does not envisage any tenancy, what to talk of petitiocter's sub-tenancy, without the permission of the Collector. Therefore, according to the vendee, there could be no question of petitioner's being a tenant over the suit land on 9-5-1982.

5. Section 9 of the Punjab Pre-emption Act, 1913 may not be relevant as the petitioner never had a claim to pre-empt the sale made by the Government. The provisions of section 10(4) of the Colonization of Government.Land Act, 1912, however, have a damaging effect against the suit of the petitioner. Subsection (4) of section 10 ibid inter alia provides that no person shall be deemed to be a tenant or to have any right or title in the land allotted to him until a written order to that effect has been passed and he has taken possession of the land with the permission of the Collector. It further lays down that after the delivery of possession to an allottee the grant shall be held subject to the conditions declared applicable thereto.

6. The facts to the extent that Ayub Shah was an allottee-tenant over the suit land, he got the proprietary rights on 9-5-1982; on the same date, he sold the suit land to Messrs Javed Aslam and Pervaiz Aslam; the petitioner was never a tenant under the Government; no order whatsoever was ever passed by the Collector creating any rights to the petitioner nor he came into possession of the suit land with the permission of the Collector. The possession of the petitioner was result of a private arrangement with Ayub Shah, which arrangement was not recognized by the law or the Government. The subletting of land as a tenant to the petitioner clearly offended against section 10(4) and, therefore, could not in any case amount to a tenancy possessed of pre-emption rights. Thus, on legal plane and at the time of impugned sale i.e. on 9-5-1982 the petitioner could not be deemed to be a tenant or to have any right or title in the suit land including the right of pre-emption.

7. Adverting now to the factual aspect of petitioner's tenancy, there are certain admissions of facts by the petitioner which negate his claim of tenancy.

8. It appears that the petitioner had a long-standing desire to purchase the suit land. In the pursuit of this ambition, he entered into a contract with Ayub Shah for the purchase of this land. On 30-5-1981, an agreement Exh.D/1 was executed whereby Ayub Shah received the whole sale price and undertook to execute the formal sale-deed on the grant of proprietary rights. However, it so happened that on the maturity of proprietary rights, Ayub Shah sold this land to M/s Javaid Aslam and Pervaiz Aslam instead of the petitioner. In an abortive effort to enforce his alleged rights under the said agreement, the 1995 petitioner brought a declaratory Suit No.370/18-5-1982 challenging the validity of the said sale and sought the affirmation of his own rights under the agreement Exh.D/1. In para. No.2 of the plaint as well as in the prayer clause, the petitioner stated that he was occupying the suit land under the agreement in his own right as owner. This fact was also corroborated by the vendor Ayub Shah who as petitioner's own witness (P.W.2) admitted that he delivered the possession to the petitioner under the agreement to sell and that the petitioner never happened to be his tenant. .9. It is, thus, abundantly clear that the petitioner's possession over the suit land could not be termed as that of a tenant in any legal or factual sense. As such he was not entitled to pre-empt the suit land. The impugned orders of the Additional Commissioner and Member, Board of Revenue, therefore, do not suffer from any illegality or material irregularity calling for interference in exercise of extraordinary Constitutional jurisdiction of this Court. Consequently, the writ petition has no merit which is dismissed hereby. Costs to be borne by the parties. A.A./G-255/L Petition dismissed.