ORDER ' are two counter revision petitions (I) filed by Sawan Khan v. Harts Peero and others and (ii) Peeru and others v. Sawan Khan and others. The facts of the case as mentioned in the order of the Mukhtiarkar briefly are that on 22-8-1975 Mir Haji Khan and Mir Faiz Muhammad Khan entered into a registered sale agreement with Sawan Khan and others. Peeru and others who were Maroosi Harts, having come to know of this sale agreement made applications on 20-8-1975, 10-9-1975, 30- 9-1975 and 25-10-1975 to the Mukhtiarkar requesting therein that they were mauroosi Harts of the land and that the zamindars had disposed of the land that was under their tenancy to Sawan Khan and others without giving any notice to them (Harts) and thereby ignoring their right of pre- emption to purchase the land. They also alleged in the application that Sawan Khan was on inimical terms with them and they apprehended that he would eject them from their harap. They also alleged that the other party in order to defeat the provisions of M. L. R. 115 manipulated fictitious lease deed for 5 years which was written after the agreement of sale. They produced photostat copy of the lease deed dated 22-11-1975 and copy of agreement of sale which was dated 22-8-1975. The Mukhtiarkar after necessary verification the land to 23 haris mentioned in his order. The Mukhtiarkar held that the subsequent lease deed was made to deprive the poor haris of their right of pre-emption to purchase the land and ultimately to defeat the provisions of M. L. R.
115. He considered the sale agreement as sale transaction, sufficient to give right of pre-emption to haris. As for subsequent lease he held that this right of lease of land should also go to the tenants who had otherwise right of pre-emption. Therefore, in order to save the haris from harassment, he directed that the lease in the name of the other party should be cancelled and given to the tenants as they had prior right. Being aggrieved by this order, Sawan Khan and others filed an appeal with the Assistant Commissioner who maintained the order of the Mukhtiarkar with a modification that out of 23 haris 6 hairs mentioned in para. 1 of his order were not genuine. He confirmed the order of the Mukhtiarkar that the Zamindars were bound by law to give first right of pre-emption of lease to the genuine haris. He also decided that the land may be purchased by the haris at the rate of Rs, 3,500 per acre as mentioned in the condition of sale agreement. Against this order two revisions were filed, one by Sawan Khan and the other by those 23 haris including 6 haris. The haris also prayed for reduction in price of the land. The revision was transferred by the Additional Deputy Commissioner, Hyderabad to this Court because of amendment in Law which gave powers of revision to the Board of Revenue.
' During the course of hearing Mr. Ali Bhai made an application that he and some others had purchased this land and therefore they should be made party. In the first instance it was summarily rejected by this Court. Subsequently it was presented by Mr. Imam Ali Memon, Advocate who mainly contended that during the pendency of pre-emption proceedings All Bhai and others in collusion with Sawan Khan and others purchased the land by registered sale deed. The petitioners who are illiterate haris were not aware of this alleged transaction of sale. It was first time in this Court that they had seen Ali Bhai. Therefore if Ali Bhai and others were not made party, they would be deemed to have been condemned unheard. Any adjudication by this Court in favour of haris would be of no consequence because the land stood sold to Ali Bhai and others and therefore they may not be bound by the decision of this Court. Moreover it was Ali Bhai and others who would be paid the price, if this Court confirms the pre-emption right. Therefore it was very necessary that they should be made party and given opportunity of being heard.
3. Mr. Habib ullah Memon, Advocate for Sawan Khan and others on the other hand contended, that this Court had already rejected Ali Bhai's application. Therefore it was not competent to review that order. This Court, being revisional authority, had no jurisdiction to entertain this fresh application and that effective adjudication of the case was possible without joining Ali Bhai and others. Both the parties quoted number of rulings in support of their contention. However, after hearing the Advocates on a number of occasions, this Court came to the conclusion that Ali Bhai and others were necessary party and therefore they should be made party.
4. So far the main revision of Sawan Khan and others is concerned Mr. Habibullah Advocate contended that the sellers bad only entered into a registered sale agreement with Sawan Khan and others. Therefore the right of pre-emption had not accrued to the haris, as the sale was not complete. The sale would be complete only after the price of land was paid and the possession was given in consequence of full payment and not otherwise. The fact that this very land was subsequently leased out showed that the agreement of sale stood revoked. As the lease was continuing, the decision of the Mukhtiarkar and Assistant Commissioner granting preemption right and also directing that the lease should be given in favour of the tenants was not proper and was without jurisdiction.
5. Mr. Imam Ali Advocate for haris contended that all along fraud was being committed on haris.
Firstly the land was sold through registered sale agreement. Then it was leased out ultimately it was sold to Ali Bhai and others. This chain of transaction during the pendency of pre-emption case clearly shows that full advantage. Of the innocence and illiteracy of the haris was taken are circumstances were being created to defeat the preemption right of the &Iris. Continuing his arguments, he stressed that the Additional Deputy Commissioner, Hyderabad after admitting the revision petition of the haris had issued status quo order on 9-5-1976 which implied in the. Legal sense that the disputed land should neither be sold by the Zamindars nor could it be purchased by the intending vendee or any body else till disposal of the revision petition. During the operation of this status quo order, the Vendees sold away the disputed land to Ali Bhai and others on 6-11-1976.
Therefore this showed that the Vendors and vendees had Blear intention to defeat the right of pre- emption of hark and circumvent the provisions of M. L. R.
115. The mere fact that the jurisdiction was changed whereby the M. B. R. Had to hear the revision would not make the status quo order inoperative. It was in force unless it was vacated by the M. B.
R.
6. The 2nd issue before this Court is about those six harts who have been considered non-genuine by the Assistant Commissioner. The Advocate conceded that Ismail was a minor. So far Tajir he is said to be dead. As for Allan Jamali nothing has been adduced before this Court to rebut conclusion of the Assistant. Commissioner that he ostensibly resided in Tando Allahyar. Murid Khan was admittedly a lessee of this land. So far remaining haris nothing has been brought out to rebut the grounds on which their claim has been rejected by the Assistant Commissioner.
7. As for price the Advocate for the hark contended that the price was to be fixed in accordance with the principles laid down in the Land Acquisition Act. The haris should therefore not be made to pay the price that Ali Bhai and others have paid. Mr. Habibullah on the other hand contends that the lands in this area are very fertile and the market price was even much more than the price decided by, the Assistant Commissioner. In fact the principles laid down in the Pre-emption Rules are to be taken into consideration.
8. I have heard the Advocates in full and also gone through the record. The first point is whether the right of pre-emption accrued to the hark as a result of registered sale agreement. I am inclined to feel that this right did accrue to them because the subsequent conduct of the sellers all along shows that they were trying at every stage to defeat the Right of Pre-emption of the hark. The lease was made subsequent to the filing of petition and subsequent to the agreement of sale. If the real intention of the sellers was not to sell this land but only to lease out, they should not have sold the land to Ali Bhai and others. It means that all along they were bent upon selling this land. Most painful part played by the sellers is that they have not even cared to honour the status quo order. I, therefore feel that the right of pre-emption to the haris accrued from the time floe registered sale agreement was executed.
9. So far the second point, that the Mukhtiarkar and the Assistant Commissioner passed wrong order that the land should be leased out to the harts I agree with the Advocate for Sawan Khan and others that there is no law under which the lease could be given to haris. This decision of the lower Court seems to have been prompted by the subsequent conduct of the sellers. However in view of the position that subsequently emerged as a result of sale, this decision is of no consequence and can be ignored.
10. So far the issue about six haris I am inclined to agree with the views of the Assistant Commissioner who has given genuine ground for not accepting their right of haras. The Assistant Commissioner is the proper Officer on the spot and there are no reasons to over rule him on point.
11. So far the 3rd point about price I agree with the decision of the Assistant Commissioner that the haris should pay the same rate i. e. Rs, 3,500 per acre on which the vendees made conditional sale with Sawan Khan and others. He has clearly said that this is the average of the market value of the deh. This is a point of fact in which I have no reason to disagree with him. As the amount involved is heavy, the haris may be allowed to pay the price within 3 months from the issue of this order. The revision petitions are rejected with the observation mentioned in para. 8. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.