' INAYAT ELAHI KHAN, J.-- The dispute in this writ petition concerns agricultural land measuring 33 Kanals 19 Marlas bearing Khasras Nos.1260/869 and 876 situate in Moza Sheikho, Tehsil Charsadda, District Peshawar. The land was purchased by Abdullah Khan and another (petitioner) through a registered sale-deed, dated 26-3-1976. The sale was pre-empted by Ibrahim Khan (respondent No.4) claiming superior right of pre-emption being a tenant in cultivating possession of the land.
The suit was resisted by the vendees mainly on the ground that the plaintiff was not a tenant of the suit land. In view of the evidence produced by the parties, the plaintiff's suit was decreed by the Collector, Charsadda, on 9-6-1979. The vendees (petitioner) feeling aggrieved went in appeal before the Additional Commissioner, Peshawar Division, but the appeal was dismissed on 19-1-1980.
The revision filed by the petitioners before the Member, Board of Revenue, N.-W.F.P., Peshawar, also failed vide order dated 21-4-1980. All the forums had given a concurrent finding that the pre- emptor Ibrahim Khan (respondent No.4) was a tenant and, therefore, had the first right of pre- emption under para. 25(3) (d) of Martial Law Regulation 115.
2. The learned counsel for the petitioner has raised two-fold contentions. Firstly, that the word 'tenant' Would not include a sub tenant a sub-lessee since admittedly Ibrahim Khan pre-emptor was holding the land as a sub-tenant under Haji Gul Pasand (respondent No.5) who was a lessee of the land from the original owners. Secondly, that the pre-emptor being a sub-tenant suffered from disqualification of being liable to eviction from the land under para. 25(1)(d) of the Regulation and, therefore, he could not be vested with a supperior right of pre-emption as envisaged by the aforesaid provisions of law. It is contended that a lessee whether cultivating the land himself or through another person, could not be termed as a 'tenant' within the meaning I of paragraph 25(3)
(d) of Martial Law Regulation 115. Reliance in this regard is placed on the definition of 'tenant' as given in the Land Reforms (North-West Frontier Province Amendment) Ordinance, 1981 (Ordinance XI of 1981). At the outset it may be mentioned that the dispute between the parties stood finally decided by the learned Member, Board of Revenue, N.-W.F.P., on 21-4-1980 whereas the aforesaid amending Ordinance came into force on 28th September, 1981. Prior to enforcement of the Amending Ordinance and in the absence of any definition of the word 'tenant' in Martial Law Regulation 115 reference used to be made to statutes which are in pari materia with the statute under consideration to ascertain the meanings of the word 'tenant'.G The definition of the word 'tenant' in the West Pakistan Land Revenue Act, 1967 is similar to the one given in the N.-W.F.P.
Tenancy Act, 1950 and is in the following terms; "'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, but it does not include:-
(a) an inferior land-owner, or
(b) a mortgagee of the right of a land-owner, or
(c) a person to whom a holding has been transferred or an estate or holding has been let in form under the Punjab Land Revenue Act, 1887 for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or,
(d) a person who takes from the Government a lease of unoccupied land for the purposes of subletting it;"
'Keeping in view the aforesaid definition, Ibrahim Khan pre-emptor wa definitely a tenant of the land in dispute at the relevant time and, therefore, had the first right of pre-emption under para. 25 of the Regulation. The argument that the pre-emptor being a sub-tenant under the lessee could not be described as a 'tenant' under the Regulation i without any substance. The word ' landlord' is defined in section 4(12) of the West Pakistan Land Revenue Act, 1967 as under:- " 'Landlord' means a person under whom a tenant holds land, and to whom the tenant is, or but for the special contract, would be liable to pay rent for that land, and shall include a lesssee of such person, and the predecessors and successors-in interest of such person."
'This definition if read alongwith the definition of the word 'tenant' as given in the aforesaid provisions of law would make it clear that Ibrahim Khan, pre-emptor being in cultivating possession of the land was all 'tenant' within the meanings of the Regulation. The mere fact that h was a tenant under the lessee and not under the original owner would not deprive him of the status of being a tenant of the land. The entire argument of the learned counsel is based on the definition of the word 'tenant' as given in the Land Reforms(North West Frontier Province Amendment) Ordinance, 1981, which is as under:- "2(13) '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 the land-owner, or
(b) a person holding any land under the Federal Government, or a Provincial Government, or under any other statutory authority, body or corporation established 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 form, for the recovery of an arrear 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."
' The contention is that when Gul Pasand Khan, being a lessee, stands excluded from the definition of the word 'tenant' and could not claim a superior right of pre-emption then a person holding the land under him would also be excluded and cannot be vested with any such right. The argument is without any force. Even if the definition, of the word 'tenant' given in the Amending Ordinance is kept in view, as suggested by the learned counsel, the pre-emptor in this case definitely falls within the meaning of the said term and can be rightly termed as a 'tenant' for the purposes of the Land Reforms Regulation, 1972. The rights of Gul Pasand Khan as a lessee of the land were not in dispute before the forums concerned and, therefore, the fact that he does not fall within the definition of the word 'tenant' would have little effect on the right claimed by Ibrahim Khan, pre-emptor. It is obvious that the pre-emptor answers all the requirements of a 'tenant' as defined in the aforesaid provisions of law and, therefore, being in actual possession of the land as a tenant could not be excluded from the benefits o para. 25(3)(d) of the Regulation.
3: The other contention that the pre-emptor being a sub-tenant of Haji Gul Pasand (respondent No.5) suffered from a disqualification o being evicted from the land at the instance of the real owner is equally , without any substance. From the revenue record it is clear that th pre-emptor had been in possession of the land as a tenant-at-will unde the lessee since prior to 1973. There is nothing on the record that th owners of the land had ever sought his eviction from the land on the aforesaid ground. It can, therefore, be assumed that he was holding the land as a tenant under the lessee with the express or impliedF consent of the real owners. Even otherwise the mere fact that the pre-emptor could have been evicted 'from the land at the instance of the owners under paragraph 25(1)(d) is not sufficient to hold that he could not be termed as a 'tenant' as envisaged by the Land Reforms' Regulation.
4. No other point is urged by the learned counsel for the petitioners.
5. For the aforesaid reasons no exception can be taken to the orders impugned in this wilt petition.
The petition, having no merit, is accordingly dismissed with no order as to costs.