This civil revision has arisen out of a pre-emption suit brought by the petitioner, Haq Nawaz against the respondents, Taj Mehmud and two others, in respect of a piece of land. The petitioner claimed superior right of pre-emption on the ground that he was brother of Afzal Khan alias Afsar Khan, who had sold the land in dispute. The suit was resisted by the respondents contending that they cultivated the land at the time of its sale in their favour and, therefore, they had the first right of pre-emption on the basis of clause (d) to sub-paragraph (3) of paragraph 25 of the Land Reforms Regulation, 1972, hereinafter referred to as the said Regulation. The view taken by a Civil Judge of Attock, who was seized of the suit, was that by purchasing the land the respondents had lost their status as tenants and therefore, they did not have the first right of pre-emption. 1n this connection, the learned Civil Judge relied on two unreported judgments delivered by this Court in Regular Second Appeal No. 496 of 1975 and Regular Second Appeal No. 854 of 1977. Resultantly, the suit was dismissed by the learned Civil Judge holding that the petitioner being the brother of the vendor had a superior right of pre-emption.
2. Feeling aggrieved by the judgment and decree of the learned trial Court, the respondents went in appeal before the District Judge Attock, who reversed the finding of the learned Civil Judge for the following reasons:- No doubt the respondent is brother of the vendor as is evident from "pedigree-table Exh. P. 1, but admittedly the appellants were tenants of the disputed land at the time of sale. The fact is proved by copy of Khasra Girdawari Exh. D. 1 and Jamabandi P.
2. The learned Civil Judge also held them tenants. Hence they have superior right of pre--emption than that of the respondent as has been held in 1980 CLC 1012."
3. Being dissatisfied with the decision of the learned appellate Court, the petitioner has come up in revision to this Court.
4. Learned counsel for the petitioner contended that with the purchase of the disputed property the respondents had lost the status of tenants of the said property and, therefore, it was rightly held by the learned trial Court that the, petitioner had a superior right of pre-emption. He also relied on the aforesaid unreported judgment in Regular Second Appeal No. 496 of 1975.
5. The case of Muhammad Iqbal and another v. Nazir Ahmad and 3 others (1980 CLC 1012), cited by the learned District Judge, was decided by me. In that case the view expressed by me was that if certain land is purchased by a tenant be can successfully resist a suit for pre-emption brought against him, on the score of the first right of pre-emption conferred on him by clause (d) of sub- paragraph (3) of paragraph 26 of the said Regulation. In the case under report, a District Judge had held that on purchasing the land cultivated by him the tenant becomes its owner and is thus divested of the right of pre-emption conferred by the said provisions of law. I, however, differed with him for the following reasons :- "7. I am also in agreement with the learned counsel for the appellants that the learned District Judge had proceeded on incorrect premises while disposing of the appellants' plea that they had the first right of pre-emption for being the tenants of the land in question. This is evident from his following remarks :--.
By making these observations, the learned District Judge wanted to convey that even if the appellants were tenants of the land in question at the time of its purchase, they had ceased to be so after becoming its owners in consequence of the sale made in their favour and, therefore, they could not resist the suit for pre-emption for being the tenants of the said land. A perusal of paragraph 25 of the Land Reforms Regulation, 1972, would reveal that in the event of sale of any land comprised in a tenancy, its tenant has the first right of pre-emption. This means that if the land cultivated by a tenant is sold to a person, other than the tenant, be (tenant) would be able to pre-empt the sale in preference to all persons on whom right of pre-emption has been conferred by section 15 of the Punjab Pre-emption Act, 1913, and if the land is purchased by the tenant himself he can successfully resist a suit for pre-emption by any of those persons. Thus, if the appellants were, in fact occupying the disputed land as tenants at the time of its sale in their favour, the respondents, who claim pre-emption for being collaterals of the vendor, would not get the land in preference to the appellants. The learned District Judge had, therefore, erred in making observations implying that if the sale of any land is made in favour of its tenant, he cannot make use of his first right of pre-emption for the purpose of defending a suit for pre-emption in regard to such sale."
As for the judgment in Regular Second Appeal No. 496 of 1975, relied upon by the learned counsel, the said appeal was dismissed by a learned Single Judge of this Court mainly for the reason that the first Appellate Court had found it as a fact that the appellant was not a tenant of the land in dispute. The precise observations made in this behalf read thus :--- "The pre-emptors claimed themselves to be the heirs of the vendors whereas the vendees considered that they were the tenants in the land in dispute. The suit was decreed and before the District Judge the contention of the appellants did not find favour and the appeal was dismissed.
The learned District Judge considered that the Khasra Girdawari Exh. D. I did not show the appellants 'as tenants in the land. The question whether at the time of the sale the appellants were the cultivating tenants was of fact and it has been decided by the learned District Judge as a question of fact and it cannot be agitated in second appeal."
After expressing this view, the learned Single Judge made the following remarks :- "Even otherwise the appellants, although the previous tenants, purchased the land and lost their status being tenants and became owners and as such could not claim that at the time of sale they were the tenants."
These remarks of my learned brother, it seems, were in the nature of obiter dicta and were not intended to be taken as declared law. In Regular Second Appeal No. 854 of 1977, which was also relied upon by the learned trial Court, the point involved in the present case was not canvassed.
Judgment in Regular Second Appeal No, 854 of 1977 is, therefore, not relevant to the point in issue.
6. .To my mind, by inserting clause (d) in sub-paragraph (3) o paragraph 25 of the said Regulation it was intended by the Legislature t enact that if a landlord is to part with the land under cultivation of his tenant the tenant should have the first right to get the land. Paragraph 25 of the said Regulation as originally enacted contained stringent provisions for t ejectment of a tenant and saved him from various taxes, cesses, levies etc. By making these provisions the framers of the said regulation wanted to ensure that the tillers of the land should enjoy the benefits of the land under their cultivation without having to bear unnecessary burden an should not be thrown out of the land if they continue taking due interest in cultivating the land. In other words, it was desired by the Legislature that the land with a tenant should not be taken away from him except for some shortcoming on his part. It was with the same object in view that clause was added to sub- paragraph (3) of paragraph 25 of the said Regulation, b means of a subsequent amendment, so as to provide that if the landlord eve decides to alienate the land cultivated by a tenant and the tenant is ready and willing to have it he (tenant) should get the land in preference to all others The object would be defeated if he is not allowed to retain the land purchase by him directly from the landlord. It would also look anomalous that tenant should be able to retrieve the land cultivated by him if it is purchased by some other person, by filing a suit for pre-emption, but shout not be able to retain the same land, if it is purchased by him straight away from the landlord.
7. By inserting clause (d) in sub-paragraph (3) of paragraph 25 of the said Regulation, the Legislature had not only laid down a qualification in addition to the qualifications enumerated in section 15 of the Punjab Pre--emption Act, 1913, hereinafter referred to as the said Act, for claiming a right of pre-emption but had also declared that the qualification so added shall superior to all the qualifications finding mention in section 15 of the said Act. It is too well known that if a person assesses one of the qualifications given in section 15 of the said Act and another person having another qualification appearing therein are out to acquire or retain some land sold by a third person, on the score of their respective qualifications, the one whose qualification is superior to that of the other will succeed in getting/retaining the land regardless of the fact that the person with superior qualification is the pre-- emptor or the vendee qua the sale by which the land is transferred. If this proposition holds good in respect of the qualifications mentioned in section 15 of the said Act, there appears to be no good reason for adopting a different approach in regard to the qualification given in clause (d) of sub paragraph (3) of paragraph 25 of the said Regulation, which is superior to all the qualifications listed in section 15 of the said Act. I am, therefore, on the considered view that just as a pre-emptor claiming one of the qualifications given in section 15 of the said Act cannot succeed against a vendee having another qualification mentioned therein, which is superior to the one assert by the preemptor, a suit for pre-emption by a person having any of the said qualifications must fait if it is in regard to a sale of land in favour of a person who cultivated it as a tenant at the time of its sale.
Looking at all the aforementioned aspects of the matter, I, with perfect sentiments of respect for my learned brother who decided Regular Second Appeal No. 496 of 1975, reiterate my humble opinion as delivered in the of Muhammad Iqbal and another, namely, that if a tenant purchases the land cultivated by him he can retain it in preference to all others on the score of the provisions of clause
(d) of sub-paragraph (3) of paragraph 25 of the said Regulation.
9. In this view of the matter, the order under revision does not call for any interference. The civil revision is accordingly dismissed in limine.