' The facts giving rise to this appeal are that the respondent, Khurshid Ahmed, filed a suit against the appellant, Abdul Rashid, for possession of a piece of land, through pre-emption, alleging that he was a tenant of the disputed land and, therefore, had the first right of pre-emption by virtue of clause (d) of sub-paragraph (3) of paragraph 25 of the Land Reforms Regulation, 1972 (formerly known as Martial Law Regulation No, 115). The suit was resisted by the appellant inter alia on the ground that the respondent had no cause of action inasmuch as the provisions of the said Regulation were not applicable to the sale in question. This sale took place on 8th August, 1972 and the right of pre-emption asserted by the respondent was conferred on the tenants with effect from Kharif 1972. The plea raised by the appellant was that the sale in dispute was effected before Kharif 1972 and, therefore, it could not be pre-empted by the respondent for being a tenant of the aforesaid land. The objection raised by the appellant found favour with the Civil Judge, who was seized of the suit, and, therefore, he had dismissed the suit.
2. Feeling aggrieved by the judgment and decree of the learned Civil Judge, the respondent-went in appeal before the District Judge. The view expressed by the learned District Judge was that the sale had taken place after Kharif 1972 and, therefore, the respondent had a cause of action. He, accordingly accepted the appeal, set aside the judgment and decree of the learned trial Court and remanded the case for fresh decision.
3. Being dissatisfied with the order of remand passed by the learned District Judge, the appellant has come up in appeal to this Court.
4. At the very outset, learned counsel for the appellant urged that in view of an amendment made in paragraph 25 of the Land Reforms Regulation the Commissioner bad the exclusive jurisdiction to hear the instant appeal and, therefore, it could not be heard by this Court. The amendment relied upon by him was made on 16th May, 1976 by means of section 6 of Land Reforms (Amendment)
Ordinance, 1976, so as to add the following new sub-paragraphs after sub-paragraph (4) of paragraph 25 :- "(5) All suits for enforcing the right of pre-emption in respect of land comprised in a tenancy shall be exclusively entertained, heard and decided by the Collector within whose jurisdiction the land in respect of which the right of pre-emption has been claimed is situated, and all such suits which may be pending in any Court immediately before the commencement of the Land Reforms (Amendment) Ordinance, 1976, shall, on such commencement, stand transferred to the Collector concerned.
(6) Any person aggrieved by an order passed by a Collector under the preceding sub-paragraph may, within thirty days of such order, prefer an appeal to Commissioner.
(7) The Board of Revenue may at any time of its own motion or otherwise call for the record of any case or proceedings under this paragraph which is pending or in which a Collector or Commissioner has passed an order, for the purpose of satisfying itself as to the correctness, legality or propriety of such proceedings or order, and may pass such order in relation thereto as it thinks fit : ' Provided that no order shall be passed under this sub-paragraph revising or modifying an order affecting any person unless such person has been afforded an opportunity of being heard : ' Provided further that the record of any case or proceedings in which a Collector or Commissioner has passed an order shall not be called for under this sub-paragraph on the application of any aggrieved person made after the expiration of thirty days from the date of such order.
' For the purpose of this paragraph a Collector, a Commissioner and the Board of Revenue shall be deemed to be a Civil Court and shall have all powers of a civil Court under any law for the time being in force and the final order passed in such suits shall be deemed to be a decree of a civil Court and shall be executed as such.
' In computing the limitation provided for in sub-paragraph (6) or sub-paragraph (7), the provisions of section 5 and section 12 of the Limitation Act, 1908 (IX of 1908), shall apply "
' The newly-added sub-paragraph (5) relates to suits only. Learned counsel for the appellant, however, contended that since an appeal was continuation of the proceedings initiated by a suit, the provisions of the said sub-paragraph would apply to appeals also. He relied on F.A. Khan v. The Government of Pakistan (1) to support his plea.
5. On the other hand, learned counsel for the respondent maintained that by using the word "suits" in sub-paragraph (5) the Legislature clearly intended to make that sub-paragraph applicable to suits only and, therefore, its application could not be extended to appeals arising out of the suits. As for the case of F. A. Khan, he submitted that it was distinguishable.
6. I agree with the learned counsel for the respondent that the case of F. A. Khan deals with a point different from the one involved in the present case. The question raised before their Lordships of the Supreme Court in the said case was whether in case of dismissal of a Government servant, where period of limitation, for a declaratory suit, contesting the order of dismissal, was to be reckoned, under Article 120 of the Limitation Act, 1908, from the time when "the right to sue accrues", such right will be deemed to have accrued on the date of the first order of dismissal or on the date of order of the Appellate Authority confirming the first order. While dealing with the question, Kaikaus, J. (as he then was) observed :- "(i) when an appeal is filed the matter becomes subjudice and is reheard by the appellate Court which does not act merely as a Court of error ; (1) PLD 1964 SC 520
(ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court ;
(iii) the original and appellate proceedings are steps ,in one proceedings."
' These observations were made by his Lordship with a view to pointing out that where a public servant is dismissed from service, controversy relating to the validity of the order of his dismissal comes to an end with the passing of order by the appellate authority and not on the making of the first order of dismissal which is challenged by means of an appeal. So far as the categorization of different proceedings brought before the Courts is concerned, it was not ruled by his Lordship that there was no difference between a suit and an appeal. Therefore, the case of F. A. Khan is of little help to the learned counsel for the appellant.
7. Sub-paragraph (5) confers exclusive jurisdiction on the Collector to decide suits in which right of pre-emption is claimed on the basis of tenancy. Sub-paragraph (6), which was also inserted by the said amendment, provides that any person aggrieved by an order passed by a Collector under sub-paragraph (5) may within thirty days of such order prefer an appeal to the Commissioner.
Thus, while enacting subparagraphs (5) and (6), the makers of the law were fully conscious of difference between the two categories of proceedings they were dealing with, namely, suits and appeals. Since they did not make an express A provision ousting the jurisdiction of the Civil Courts in regard to the appeals pending before them at the time of the amendment under examination, it would follow that they intended the pending appeals to be heard and decided by the appellate Courts on the civil side and not by the Commissioners. I am, therefore, unable to agree with the learned counsel for the appellant that in consequence of the above amendment in the Land Reforms Regulation this Court has no jurisdiction to dispose of the appeal in hand.
8. As for the merits of the case, the only question to be resolved herein is whether Kharif 1972 had commenced before or after 8th August, 1972 when the sale in dispute had taken place. Learned counsel for the appellant submitted that Kharif 1972 commenced from October, 1972 and not earlier. The only authority cited by him to support his contention is rule 38 of the West Pakistan Land Revenue Rules, 1968, which, inter alia, provides that the Commissioner may fix the date on which the inspection of each harvest shall commence, according to the circumstances of the area, and in the absence of such fixation of date, the inspection of Kharif shall commence from the first of October. What we are concerned with is the present case is not the date of inspection of the harvest of Kharif 1972 by the revenue authorities but the point of time when the sowing of Kharif 1972 had commenced. The said rule, therefore, is of no assistance.
9. While replying to the arguments advanced by the learned counsel for the appellant it was submitted by the learned counsel for the respondent that Kharif crop is sown from June to August and is harvested in the month of October and November. In this connection, he relied on Muhammad Asian? v. Muhammad Akram and others (1). The relevant observations made in the cited case read thus :- "Judicial notice can be taken of some well-known facts with regard to agricultural operations in the area comprising the former Province of the Punjab. The two major crops in this area Kharif and Rabi crops. The Kharif crop is usually sown in the months of June to August and harvested and removed in the months of October-November whereas the Rabi crop is sown in the months of November- December and harvested and removed in the months of April or May. It is on account of these seasonal events that in the Punjab Tenancy Act the term "agricultural year" is defined as the year commencing on the 16th day of June, or on such other dates as the Provincial Government may by notification appoint for any local area."
In view of what has been commonly observed in this part of the country, I respectfully share the view expressed in the case of Muhammad As/am and hold that Kharif 1972 had commenced from the month of June, 1972. Since the sale in dispute was made in the month of August, 1972, it will be deemed to have taken place after Kharif 1972. Therefore, it attracts the application of clause, (d) of sub-paragraph (3) of paragraph 25 of the Land Reforms Regulation. In this view of the matter, the respondent had a cause of action.
10. The result, therefore, is that the order of remand made by the learned District Judge, which has been impugned herein, is unexceptionable. The appeal is, accordingly, dismissed with costs.
(1) Law Notes 1968 Lah. 176