' This is a revision petition against the order dated 12-4-1978 of the learned Commissioner, Sukkur Division, whereby he upheld the appeal of respondent Muhammad Ibrahim son of Jan Muhammad against recognization of Pre-emption right of the petitioners over S. No, 506(6-18) acres of Deh Bindi Motayo, taluka Gambat, District Khairpur.
2. Heard the counsel for the parties and perused the case papers on 17-12-1979 when the orders were reserved for today.
3. I have given due consideration to the case. The disputed land was purchased by the respondent No, 1 from the respondent 2 under a registered sale deed on 20-10-1976 is the sum of Rs, 17,500. The petitioners claim their rights of Pre-emption over the disputed land which was allowed to them by the Deputy Commissioner, and Collector, Khairpur vide his order dated 6-10-1977. The respondent No, I preferred an appeal before the learned Commissioner against the order of the Collector and the appeal was upheld by the learned Commissioner vide his order impugned here, mainly on the ground that the respondent No, 1 said on oath that the land in question is being cultivated by him with a tractor and the petitioners are not haris. This has been vehemently denied by the petitioners inasmuch as they produced a photostat copy of an affidavit of their counsel Mr. Niaz Muhammad Rajpar, Advocate of Khairpur deposing therein that he had never consented for giving oath to the respondent No, 1 before the learned Commissioner nor the respondent had taken oath.
4. On the other hand the counsel for the respondent contends that the oath had actually been administered by the respondent with the consent of both the parties and that the case decided by a Court on the basis of the oath cannot be challenged vide section 8 of the Oaths Act.
5. In the instant case the Deputy Commissioner and Collector held the petitioners to be haris of the disputed land and granted relief to them by ordering the sale in their favour.
6. In this context the relevant law relating to the case is that a 'tenant' exercise his right of Pre- emption under para. 25 (3) (d) and 25(5) of the Land Reforms Regulation, 1972 and he has to make an application to the Collector claiming his first right of Pre-emption under Rule 3(1) of the Sind Land Commission (Pre-emption) Rules, 1974 and not under any provisions of the Sind Tenancy Act, 1950, which is to regulate the rights and liabilities of tenants and landlords in Sind and the original jurisdiction in such matters lies with the Tribunal and Mukhtiarkar, appellate jurisdiction with the Assistant Commissioner and that of revisional with the Collector, whose order is order is final. Thus the 'right of Presumption' is conferred on the tenant under the Land Reform Regulation, 1972 (M. L. R.
115) and the Sind Land Commission (Pre emption) Rules, 1974 framed there under ; and the original jurisdiction I vested in the Collector. The tenant has to establish that he was a tenant, of the disputed land at the time of its sale because no specific patio has been prescribed in the Rules to qualify for claiming the right of Pre-emption for the tenant. The 'tenant' under M. L. R. 115 and the 'Permanent tenant' under the Sind Tenancy Act, 1950 are distinguishable. Reliance has been placed on PLD 1977 Kar.
158. '? As regards permits of the case, I lad that , the petitioners were had, of the disputed land at the time of its sale as declared by the Deputy Commissioner and Collector. Khairpur, who recognized their rights of Preemption over the same and that the sale of the land was without the consent of applicants (Petitioners). Nothing has been produced to show that the petitioners were ejected from their `Harap' of the disputed land. In the ordinary course the petitioners were entitled to the right of Pre-emption in the land as they were haris at the time the alienation took place. The only thing that has weighed against the petitioners with the learned Commissioner is that the respondent had stated on oath that he was hari and cultivating the land with the tractor. Since the position on record was quite clear and the names of the petitioners appeared in the khasra girdawari produced by the petitioners showing them as haris of the disputed land during 1975-76, there was hardly any justification for administrating the oath. Besides in such a case consent of both the parties was also necessary before administering oath which has been denied by the petitioners.
8. In view of the foregoing discussions I have come to the conclusion that both on legal consideration as well as on merits, the present case relates to the right of pre-emption Tribunals', are not expected to adjudicate upon the tenancy right of an individual. The tenancy rights are to be decided by a `Tribunal and Mukhtiarkar' constituted under the Sind Tenancy Act, 1950. It was, therefore, not incumbent upon the learned Commissioner to have assumed the jurisdiction of a 'Tenancy Tribunal' in the present case and decide the tenancy right of the petitioners as against the entries is the revenue record which have not been set aside by any competent authority.
9. In result the revision petition is upheld and the petitions are allowed to purchase the disputed land in terms of the order passed by the Deputy Commissioner and Collector, Khairpur. It is also ordered that the period of one month for payment of the sale price will reckon from the date of Communication of this order.