M.S.H. QURAISHI, J.-- This appeal, by leave of the Court, arises out of a pre-emption suit instituted by respondent Fazal Wali to pre-empt the sale of land measuring 90 Kanals 14 Marlas in Khasra Nos. 1041, 1047 and 1101 on the ground that he, being a tenant of the land, had the first right of preference. The Collector, who heard the suit, dismissed it on the view that Fazal Wali was a lessee and not tenant and according to the Notification of Land Commission N.-W.F.P., dated 21-2-1977, the word "tenant" as used in paragraph 25 of M.L.R. 115 did not include a lessee who is covered by the definition of "landlord" as given in the Land Revenue Act. On appeal, preferred by Fazal Wali, the Additional Commissioner, however, held that he, being a self-cultivating lessee of the suit land, was to be considered a tenant for the purposes of M.L.R. 115 because the Notification relied upon by the Collector envisages -only a lessee who sublets his lease to a tenant instead of cultivating the land himself. He, therefore, decreed the suit. The appellants/ vendees assailed the decree in revision before the Board of Revenue but failed. Later, they filed a review application on a new ground, inter alia, that "about I of the suit property is Banjar and not under cultivation of the plaintiff-respondent and under the law the same will be presumed to be in possession of the owner" but the application was dismissed on the ground of limitation and also because the point had not been raised at any stage earlier.
2. The appellants then filed a writ petition but the same, to, was dismissed by the impugned judgment, dated 21-4-1980. The High Court was of the view that the order assailed before it could not be said to be without jurisdiction. In regard to the assertion that a portion of the suit land recorded as Banjar Qadeem was not pre-emptiable, the High Court held that the point not having been taken at the proper stage before the Revenue authorities, their order was not exceptionable.
3. The appellants then moved this Court for leave to appeal. At the the of grant of leave, the pre- emptive right of the respondent was not disputed. Instead it was submitted that the entire area of the suit land did not comprise within his tenancy as certain portion of it was Banjar Qadeem, which had not even been shown by the responder; to have been cultivated by him. Leave to appeal was accordingly granted to consider the question of pre-emptibility of the portion recorded as Banjar Qadeem.
4. Learned counsel for the appellants has submitted, and the same has not been controverted, that 12 Kanals in Khasra No. 1047 and 10 Kanals 9 Marlas in Khasra No. 1101, i.e. 22 Kanals 9 Marlas in all, is recorded as Banjar Qadeem which he urged, not being shown to have been under cultivation must be considered to be in the possession of its owner and not of the tenant and as such the respondent could not assert his right on this portion of the land on the ground of being a tenant. He also referred to the definition of the term "tenant" introduced by the Land Reforms (North-West Frontier Province Amendment) Ordinance (XI of 1981), published on 28-9-1981, whereby "a lessee whether cultivating the land himself or through another person" has been excluded from that definition. He, therefore, urged that by this new definition, which is applicable retrospectively to a pending matter, the respondent who at best had been adjudged a self-cultivating lessee, cannot claim to be a tenant and as such his suit itself is liable to dismissal.
5. The term "tenant" for the purpose of para. 25(3)(d) of Martial Law Regulation 115 is not defined in that Regulation. The definition has, therefore, to be supplied by reference, either from the N.-W.F.P.
Tenancy Act, 1950, or the West Pakistan Land Revenue Act, 1967. There is no material difference between the to definitions in so far as the question before us is concerned. However, the - N.-W.F.P.
Government by Notification No.2186/L.C.1(1)16, dated 8-9-1973 (published on 21-9-1973), made it clear that the term "tenant" used in paragraph 25 of the Regulation shall have the same meaning as assigned to it in clause (26) of section 4 of the West Pakistan Land Revenue Act. 1967. The definition reads:- "(26)'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 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 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."
Some difficulty appears to have been experienced in applying the above definition to a lessee, for the removal of which the Provincial Land Commission issued Notification No.1075/L.C., dated 21-2- 1977 to clarify that "the word 'Tenant' as used in paragraph 25 of Martial Law Regulation 115 does not include a lessee who is covered by the definition of 'Landlord' as given in subsection (12) of section 4 of the West Pakistan Land Revenue Act, 1967". This notification, however, did not complete, solve the difficulty because a question did arise whether a self-cultivating lessee could be bracketed as "landlord" because the latter term could be conceived only in relation to a tenant whereas a lessee in self cultivation had no tenant The Provincial Government ultimately, by the amending Ordinance XI of 1981, incorporated the following definition of "tenant" in clause (13) of para. 2 of M.L.R.115. This definition reads:- "(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)
(b)
(c)
(d)a lessee, whether cultivating the land himself or through another person."
6. On the question, whether this new definition was retrospective in operation, a Petition Bench of this Court, of which one of us (M. Burhanuddin Khan, J) was a member, in Ramzan Ali v. Fazal Qadir and another, Civil Petition No. 133-P of 1983, decided on 15-4-1984, answered the same in the affirmative, for the reason that the definition was to be read "as part of the original parent Regulation". The Bench, in this connection, referred to Caries on Statute Law (6th Edition, page 394).
We see no reason to differ from the view taken by the Petition Bench, for the amending Ordinance XI of 1981, being declaratory and clarification in nature, was meant obviously to supply the omission and as such was retrospective in operation.
7. Even the absence of the amending Ordinance of 1981 would have made no difference, for no provision of the law was brought to our notice to support that a self-cultivating lessee was to be included in the definition of 'tenant'. The status of such lessee was open to a proper interpretation and there was a fair scope for the view that a person who obtains land on lease, does not cease to be a leases merely because he chooses to cultivate the land himself. The respondent, therefore, was not a tenant and could not assert a right of pre-emption under paragraph 25(3)(d) of the, Regulation.
8. But we are not inclined to enlarge the scope of the leave granting order which had been confined to the examination of the pre-emptibility of only that portion of the land which was recorded as Banjar Qadeem. It may be noted that although the amending Ordinance had come into force on 28-9-1981, no plea based on the same had been raised on behalf of the appellants during the hearing of the leave petition on 23-6-1982 and an exception had been sought only in regard to the Banjar Qadeem portion of the suit land. The appellants, therefore, can now succeed only in regard to that portion which measures 22 Kanals 9 Marlas, there being no dispute that the same is recorded as Banjar Qadeem. The appeal is accordingly allowed to the extent of an area measuring 22 Kanals 9 Marlas comprised in Khasra Nos. 1047 and 1101. The area of the land in the decree passed in favour of the respondent shall be reduced accordingly. There shall be no order as to costs.