' Facts relevant and necessary for the decision of the present writ petition are that land measuring 75 Kanals and 11 Marlas comprising Kbasra Nos. 813, 830, 833 to 839, situated in village Bhobtian, Tehsil and District, Lahore, was sold by Dr. Asghar Nizami to Haji Ghulam Muhammad, Haji Ghulam Yasin, Muhammad Younas, Mian Muhammad Munir, Mian Muhammad Siddique and Mian Muhammad Usman through a Registered sale-deed, dated 21st November, 1975. Muhammad Ashraf claiming to be a tenant in occupation of the land instituted a suit for preemption on 11th December, 1975 in respect of the above-stated sale in the Court of Collector under para. 25 of the Land Reforms Regulation, 1972, as amended. The suit was resisted. Following issues arising from the pleadings of the parties were raised by the learned Collector :-
(1) Whether the suit is maintainable in its present form ? O.P.P.
(2) Whether the plaintiff is estopped by his own conduct to bring the present suit ? O.P.P.
(3) Whether the present suit is based on mala fide intention ? O.P.D.
(4) Whether the plaintiff has no cause of action to file the present suit ? O.P.D.
(5) Whether the proper court-fee has been affixed on the plaint ? O.P.P.
(6) Whether the right of pre-emption is superior to that of defendants 7-0.13.P.
(7) Relief.
' Vide judgment and decree, dated 20th February, 1980, the plaintiff's suit was decreed subject to the payment of the pre-emption amount. Appeal filed by Haji Ghulam Yasin and others in the Court of learned Additional Commissioner (Revenue), Lahore Division, Lahore, was dismissed on 17th December, 1980. Vendees preferred a revision. Under paragraph 25 subpara. (7) of the Land Reforms Regulation, 1972, before the learned Member, Board of Revenue, Punjab, Lahore. The learned Member, Board of Revenue, vide his judgment dated 11th April, 1984, holding the plaintiff as lessee observed that he had no right of pre-emption under Martial Law Regulation No,
115. On the basis of the said finding, the learned Member accepted revision, setting aside both the orders of Collector and the learned Commissioner, ordered dismissal of the suit.
2. Aggrieved, Muhammad Ashraf, plaintiff, has preferred a writ petition under Article 9 of the Provisional Constitution Order, 1981, praying for a declaration that the ultimate order passed in revision on 11th April, 1984 by the learned Member, Board of Revenue, Punjab, Lahore, be declared to have been passed without lawful authority.
3. Mian Munawar Hussain, Advocate, representing the respondents appeared on his own to assist the Court at the him stage. After hearing both the learned counsel, I decided to admit the writ petition to full hearing.
4. Learned counsel for the respondent accepted formal notice. Both the learned counsel were heard at full length thereafter.
5. The main contention raised in support of the writ petition by the learned counsel for the petitioner is that the petitioner/plaintiff is a tenant of the suit land as such is entitled to enforce his right of pre-emption in respect of the land comprised in his tenancy which has been conveyed to the vendees. Both the Courts below, according to the contention of the learned counsel for the petitioner had held that Muhammad Ashraf plaintiff/petitioner was a tenant within the meanings of para. 25 of M. L. R. 115 of 1972 as amended and as such, was entitled to seek and enforce the right of pre-emption granted under the said paragraph. Learned counsel contended that the learned Member, Board of Revenue in revision could not interfere with the concurrent finding of facts recorded by the Courts below in favour of the plaintiff. The land in dispute was taken on lease for a period of one year from 15th June, 1975 to 15th June, 1976 by Muhammad Ashraf through Iqrarnama, dated 31st August, 1975 (Annexure 'E') thus being a lessee was to be treated as a tenant under para. 25 of M.L.R. 115 of 1972. According to the learned counsel, lessee and tenant are synoymous terms and the distinction drawn by the learned Member Board of Revenue by holding a lessee not to be a tenant for the purposes of para. 25 of M. L. R. 1972, is wholly without jurisdiction.
Learned counsel has placed reliance on the case of Muhammad Yousaf v. Province of Punjab (1) in support thereof..
6. Learned counsel for the respondents, however, joining issue with the learned counsel for the petitioner has submitted that the purpose of the Land Reforms Regulation 1972 particularly para. 25 as amended from time to time was to ameliorate the conditions of the poor tillers of soil and for the first time in the history of Reforms introduced the tenant cultivating a land was granted a superior most right of pre-emption, even above the collaterals. The purpose was that the tenants who have been cultivating agricultural land with toil and labour should be given the right of prior purchase even as against the collaterals etc. In case of the sale of land by its owner. The spirit of the Reforms introduced will stand defeated if such like lessees, in which category the plaintiff falls are allowed the right of pre-emption. Further contended that the land in dispute was taken for a period of five years by Muhammad Ashraf from Dr. Asghar Nizami on a fixed payment of lease money. After efflux of the original period on 31st August, 1975, the suit land was again taken on lease for a further period of one year only subject to payment of a lump sum ZareTheka amounting to Rs, 15,000. The said leave, according to the learned counsel, expired on 15th of June, 1976, during the pendency of the suit in the trial Court. Thereafter, he was left with no right in the suit land. As regards the case of Muhammad Yousaf v. Province of Punjab, it has been pointed out that it stands overruled by a Division Bench of this Court on 19th December, 1978, in the case of Taj Muhammad v. Punjab Province (in Writ Petition No, 980 of 1976). Copy of the unreported judgment of the Division Bench has been placed on file. Learned counsel for the respondents has placed reliance on the case of Wali Dad v. Deputy Commissioner, Karachi and 2 others (2), Ilahi Bakhsh and 3 others v. Deputy Commissioner, Sukkur and 3 others (3). In both the cases referred to above, it has been held that a tenant for the purposes of Regulation meant a cultivator or a Hari and did not include a lessee.
Proceeding further, learned counsel for the respondents has drawn attention of the Court to the recent amendments made in the Land Reforms Regulation, 1972 through Ordinance V of 1982 (The Land Reforms Regulation (Punjab Amendment) Ordinance, 1982) whereby in
(1) PLD 1976 Lah. 328 (2) PLD 1975 Kar. 202
(3) PLD 1977 Kar. 825 ' paragraph 2 (13), definition of a tenant has been added as "tenant" means a person who holds land under another person and is, or, but for a special contract would be liable to pay rent for that land to that other person and includes his predecessor and successor in interest of such persons but does not include :- "(a) a mortgagee of the rights of a land-owner ; or
(b) a person holding any land under the Federal Government or a Provincial Government, or under any statutory authority or corporation set up by any such Government as may be notified by it in this behalf ; or
(c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, for the recovery of arrears of land revenue or of a sum recoverable as such an arrear ; or
(d) a lessee, whether cultivating the land himself or through another person."
' Referring to the latter amendment, learned counsel contended that it has clarified the intention of the Legislature as to who is to be treated as a tenant for the purposes of the protection, rights and privileges under paragraph 25 and the related paragraphs of Land Reforms Regulation, 1972.
7. Right of pre-emption for the first time in the history of the Law of Pre-emption in this country has been granted to tenants through Land Reforms introduced in the year 1972 by bringing the Land Reforms Regulation, 1972 on the Statute Book. Not only that restrictions were placed on the right of landlord, to evict ,tenants, but in case of sale of land by the owner of the agricultural land, the first right of pre-emption was granted to the tenant in respect of the land compromised in his tenancy.
The definition of the tenant, however, was not given in the original Land Reforms Regulation 115 of 1972. However, as it appears from the Division Bench Judgment alluded to above, through notification issued by the Commission the term "tenant" was defined on 23rd April, 1973. This Notification was issued under para. 4 (8) of the above-stated Regulation. The effect of the Notification was that the order/Notification issued formed part of the main Regulation and took effect accordingly. Definition of tenant given in section 4 (26) of the Punjab, Land Revenue Act, 1967 was adopted for the purposes of Land Reforms Regulation. Later on, a clarificatory Notification was also issued on 8th of June, 1973 to show that the word "tenant" in para. 25 did not include a lessee.
This notification is reproduced below :- "In continuation of Notification No, DSL-142/73/1828-L C (2), dated 23rd of April, 1973, the Land Commission of the Punjab is pleased to clarify that the word "tenant" as used in para. 25 of Martial Law Regulation 115 does not include a lessee who is covered by definition of landlord as given in subsection (12) of section 4 of the West Pakistan Land Revenue Act, 1967 (West Pakistan Act XVII of 1967)."
8. It will be evident from the notifications reproduced above that then lessee was not placed at par with the tenant to enforce a right of pre- emption granted under para. 25 (2)(d). Therefore, the plaintiff, Muhammad Ashraf, who obtained the land subject-matter of the pre-emption suit on a patio on payment of premium money for a period of five years and thereafter on its expiry, for a further period of one year which too expired on 15th of June, 1976, though a lessee of land till 15th of June, 1976 was not a tenant as defined in the Land Reforms Regulation No, 115 of 1972 as subsequently supplemented by order/Notification issued by the Land Commission acting under para. 4 (8) of the said Regulation. This becomes further clear by the enforcement of the Land Reforms Regulation Punjab Amendment Ordinance, 1982, which by a separate definition clause has excluded lessee whether cultivating the land himself or through another person, from the definition of a tenant for the purposes of Land Reforms Regulation 115 of 1972. The word "tenant" has been defined in section 4 (26) of the Punjab Land Revenue Act, 1967 as "tenant" means a person who holds land under another person, and is, or but for a special contract would be liable to pay rent for that land to that other person, and includes the predecessors and successors in interest of such person, but does not include-
(a) a mortgagee of the rights of a land-owner, or
(b) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the provisions of this Act, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear ; or
(c) a person who takes from Government a lease of unoccupied land for the purpose of subletting it.
' Similarly the word landlord has been defined in section 4 (12) of the same Act. I he term tenancy has also been defined in section 2 (27) of the Punjab Land Revenue Act. The word "tenant" has also been defined in the Punjab Tenancy Act in section 4, subsection (5). Similarly, the terms "landlord" and "tenancy" have also been defined in sections 4 (6) and 4 (7) of the Punjab Tenancy Act. The word 'lease' has been defined in Chapter V, section 105 of the Transfer of Property Act, 1882 as under "105. Lease defined.-A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
' Lessor, lessee, premium and rent defined.-The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent."
The definition of tenant given in the Punjab Land Revenue Act, 1967, Punjab Tenancy Act and the Land Reforms Act, 1977 is identical. However, looking to the definition of the word "landlord" given in section 4 (12) in the Punjab Land Revenue Act, 1967 which has been adopted by the Land Commission of the Punjab in its clarificatory Notification dated 8th of June, 1973 it becomes clear that lessee is not included in the defini-,B tion of a tenant for the purposes of para. 25 of the Land Reforms Regulation 115 of 1972. This has been made clear further by amendment through'
Ordinance V of 1982 whereby a new definition of tenant has been added, expressly excluding lessee.
9. As stated above, the whole spirit behind these Reforms in extending the right of pre-emption to the tenant-in-cultivation was to improve the lot of teeming Million, tillers of soil to enable them to acquire agricultural land comprised in their tenancies when it was sold by its owner. The spirit behind the legislation will be defeated if such like lessees (Thekedars) as the plaintiff is, are allowed to avail of the provisions of para. 25 (2) (d) of the Land Reforms Regulation. Muhammad Ashraf, plaintiff/petitioner lessee of the land for a fixed period of one year on payment of fixed premium money cannot in law be deemed to be a tenant in cultivation of the land for the purposes of exercising and enforcing a right of pre-emption granted under the Regulation, learned Member, Board of Revenue, therefore, had rightly interfered in revisional jurisdiction to set right an obvious wrong interpretation of law on which both the Courts below had proceeded. Learned Collector as well as the learned Additional Commissioner had seriously misconstrued the provisions of para. 25 of the Land Reforms Regulation, 1972 in holding the plaintiff to be a tenant for the purposes of para. 25 of the Regulation.
10. As a result of the foregoing discussion, the contentions raised by the learned counsel for the petitioner are found to be devoid of any legal force. The writ petition is accordingly dismissed leaving the parties to bear their own costs.