SARDAR MUHAMMAD ASLAM, J. - This Civil Revision calls in question the judgment and decree dated 19.12.1997 passed by the learned Additional District Judge, Rawalpindi, whereby, the appeal of the respondent was allowed, the judgment of the learned Trial Court dated 3rd of March, 1983 was set aside and the suit of the respondent Tor possession through pre-emption was decreed.
2. The brief facts for the disposal of this revision petition are that the respondent filed a suit for possession through pre-emption in respect of a sale which took place on 29.1.1980 vide Mutation No. 2508 claiming superiority on the ground of being a collateral and co-owner. The petitioners- defendants filed written statement denying the superior right of the respondent, It was further pleaded that defendants Nos. 2 to 4 have transferred their share in the suit land to defendant No. 1 within the period of limitation provided for filing a suit for pre-emption. Controversies in the pleadings were reflected into the issues. Both the parties produced their respective evidence. The suit was dismissed. Pre-emptor's appeal was allowed on 31.3.1984 by a learned Additional District Judge. A revision was preferred before this Court which was allowed and the matter was remitted to the Appellate Court -for afresh decision after granting opportunity to the parties to produce their evidence. Pursuant to the remand order, evidence was recorded on issue No. 1, as rest of the issues went against the vendees having not been pressed.
3. The learned Additional District Judge vide his impugned judgment dated 19.12.1997 accepted the appeal and decreed the suit of respondent, which judgment has been assailed herein.
4. The learned counsel for the petitioner contends that Mehr Din vendee/defendant was a tenant on the suit land. He had a superior right qua the pre-emption; though, in the transaction of sale, the joined respondents Nos. 2, 3 and 4, who had no right of tenancy but within limitation period of ene year, be purchased the land from defendants. Nos. 2 to 4, hence the principle of sinker has no application. He places reliance on PLD 1954 BJ 48, PLD 1971 Lahore 171 arid 1991 SGMR 1419.
On the Other hand, the learned counsel for the plaintiff/respondent,. In opposition, argled that the sale by defendants Nos. 2 to 4 was made on 27.1.1998, after institution of the suit. The provisions pf Section 21-A of the Punjab Pre-emption Act, 1913 were attracted, disentitling the petitioner/vendee to improve his status. According to him the petitioner will sink with defendants Nos. 2 to 4, who were strangers.
5. I have considered the respective contentions of the learned counsel for the parties and with their able assistance examined the evidence.
6. The sale back place through Mutation No. 2508, dated 28.1.1980. The pre-emptor filed a suit for possession on 20.1.1981, Resale by defendants Nos. 2 to 4 was made in favour of defendant No. 1 through Mutation No 2527, dated 27.1.1981, one day prior to the expiry of limitation. Section 21-A of the Punjab Pre-emption Act, 1913 is reproduced below for facility of reference:- 21-A Insertion of new Section in Punjab Act, I of 1913 - Any improvement, otherwise than through inheritance or succession, made in the status of a vendee-defendant after the institution of a suit for preemption shall not affect the right of the pre-emption plaintiff in each suit.
7. Ln the case of Bakhshan and others v. Haji and others reported in PLD 1954 Baghdad-ul-Jadid 48, a Division Bench held that vendee-defendants may successfully defeat the suit of a pre-emptor by transferring pendente life the suit property by exchange to a person enjoying a superior right of pre-emption, ln another case of Mst. Fateh Bibi v. Ahmad Khan and 6 others reported in PLD 1971 Lahore 17, it was held by a Division Bench that principle of 7/s pendens, shall not apply to the case of sale of immovable property by a vendee in favour of a person having rights of pre-emption superior to that of pre-emptor. Resale by vendee to a person having rights superior to that of pre- emptor would defeat preemptor. Ln 1991 SCMR 1419 (Sarwar Muhammad Sharif and 2 others v.
Makhmool and others) the Honourable Supreme Court approving the views expressed in the aforesaid pronouncements while interpreting Section 21-A of the Punjab-Pre-emption Act, 1913, held that re-sale by two vendees in favour of third vendee beyond period of limitation, would not stand in the way of pre-emptive claim of pre-emptors. The doctrine of tis pendens applies to pre- emption claims except in one situation where the sale by the vendee is to one who has a superior right of pre-emption and it is made within the period of limitation prescribed for preemption suit.
Tenant was granted first right to pre empt land under para.25(2)(d) of Land Reforms Regulations, 1972. Whether petitioner was a tenant on the date of sale and has superior right to that of pre- emptor shall be examined, hereinafter.
8. Exh. D.3 i.e. Mutation No. 8615, Dated 14.8.1946 annexed with Register Haqdaran Zamin 1945-46, depicts that Mehr Din is an occupancy tenant in the suit land The rights of occupancy tenants stood terminated by operation of law. The petitioner became a co-owner in land, after termination of the occupancy rights.
9. Exh. P.2 is a copy of Register Haqdaran Zamin for the year 1973-74. Entry in column No 4 records the defendant's status in the suit land as under:- ((Urdu Text))
The same position is- reflected in the copy of Khasra Girdawri, Exh. D-4, Copy of Register Haqdaran Zamin Exh. D.3 and Exh. D.6. The Revenue Record unequivocally depict petitioner, a co-sharer, a person can either be an owner or a tenant and cannot held both the capacities at one and the same time. Owner is defined in Black's Law Dictionary as under:- Owner-the person in whom is vested the ownership, domination, or title of property; proprietor. He who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to, enjoy and do with us be pleases, even be spell or destroy it, as far as the law permits, unless he be prevented by same agreement or convenient which restrains his right.
Ln the Ballentine's Dictionary, Third Edition, "owner" and ownership have been defined as follows:- "Owner - One who has completed dominion over particular property...... The person in whom the legal or equitable title rests ln common understanding, the person who, is case of the destruction or property, must sustain the loss,"
"Ownership - The right of an owner. Title to property. Dominion over property. The right of possession and control of property, including the right to protect and defend such possession against the intrusion or trespass of others....... The right to dispose of a thing as one pleases, provided the rights of others are not thereby infringed or some law violated." ln 1972 SCMR 357 (Ahmed and others v. Ghulam Haider), the Honourable Supreme Court held that;- "We are not concerned with the definition of "owner" given in the Martial Law Regulation No. 64 or in the Bombay Land Revenue Code or in the West Pakistan Land Revenue Act, 1967; but we are here concerned with 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", namely, a person possessing full proprietary, rights over the land, has to be accepted." ln Dictionary meaning a tenant is defined as under:- Tenant - ln the broadest sense, one who holds or possesses land or tenements by any kind of right or title, whether in fee, for life, for years, at will or otherwise, ln a more restricted sense, one who holds land of another; one who has the temporary use and occupation of real property owned by another person (called the landlord), the duration and terms of his tenancy being usually fixed by investment called "lease". One who occupies another's land or premises is subordination to such other's title and with his assent, express or implied. One resting land and paying for it either in mining or peert of crop or equivalent.
Ln PLD 1975 Supreme Court 9 (Mirza Adam Khan v. Muhammad Sultan), the Honourable Supreme Court held that "A co-owner does not, therefore, become a tenant of the other owners, simply by being in Possession of property in excess of his own share, and he would, therefore, be liable to pay compensation to the other co-owners for the excess occupied by him." ln 1983 CLC 930 (Muhammad Bashir and 2 others v. Board of Revenue and 3 others) it was noted, down as under:- "........ Para. 25(d)-Right of pre-emption-Haris tenant purchasing a portion of property and raising no objection to sale of remaining portion made to petitioner on same date and same rate-Tenant after having become Zamindar, held, lost his right of pre-emption in respect of remaining area sold to petitioner." ln PLJ 1985 Revenue 1 (Talib Hussain v. Mir Muhammad Khan and 2 others), it was held that the tenant as joint-holder owns share in every inch of the joint holding a part of his pre-emption, claim would be against his own ownership, which according to my (Member, Board of Revenue) interpretation was never the intention of MLR 115.
Ln PLD 1988 Lahore 277 (Mithee v. Member, Board of Revenue, Punjab, Lahore and 1 others), it was held that "a tenant of a joint Khata after he purchases a share thereof become a co-owner therein."
The petitioner-defendant is thus not a tenant but a co-sharer in the suit property.
10. The pre-emptor claimed superiority qua the petitioner on the qualification of (1) firstly being collateral of the vendor, and, secondly, co-sharer in the suit land. Preemptor and petitioner, have been held to be co-sharers. The right of petitioner is not superior to the pre-emptor. He had associated with him, defendants Nos. 2 to 4, who are strangers. Petitioner will sink with his co- defendants on the principle of doctrine of sinker fully amended in the judicial pronouncements.
11. The other ground of preferential claim is of yakjaddi. The vendor in Mirza son of Jehahdad. The preemptor is son of Hukanri Dad. Hukam Dad is son of Senchi Khan who is son of Karam Dad.
Karam Dad is son of Ali Maidan as is reflected in the copy of "Shajra-e-Nasb" (Exh P.3). For the purpose of elucidation of "Shajra-e-Nasb" (Exh P.3), the respondent filed an application for permission to produce copy, of a mutation on the death of Muhammad son of Lae caste Gujjar.
Reply was filed by the other side, ln para. 2 of the reply the petitioner stated that Mehr Din, revision petitioner, was admittedly the tenant in the suit land and had the superior rights defeat the pre- emption claim of pre-emptor who was just claiming to be collateral of the vendor, It was further stated that even if pre-emptor is allowed to place on the record the-documents, annexed with the C.M., it will serve no useful purpose. This application was formally allowed subject to all just and legal exceptions. The application filed by pre-emptor need not be considered, an sufficient evidence is available on record enabling this Court to decide the case. Exh. P.3 "Shajra-e-Nasb" proves the pre-emptor to be the "Yak Jaddi" of the vendor and thus was equipped with a superior right of pre-emption.
The reasoning given by the learned Appellate Court are. Sustainable. The conclusion arrived at is affirmed for reasons mentioned in this Civil Revision. Resultantly, the Civil Revision is dismissed being without any force.