1. This is an application in constitutional jurisdiction by Mir Zaman, whose suit to pre-empt the sale of suit property as tenant, was dismissed by Board of Revenue on 2-12-1985. His suit was, in the first instance, dismissed on 29-5-1984, by Collector Chakwal. However, on appeal, dismissal order was reversed and suit was decreed in favour of pre-emptor subject to payment of Rs.31,500. Decision given on appeal was again set aside as stated above by learned Member Board of Revenue. Brief facts are: Suit property consisting of 31 Kanals 11 Marlas, comprised in fields Nos. 2785, 2786, 2787 and 2812, situate in the revenue estate Jathail, Tehsil Chakwal, was purchased by Muhammad Feroze for Rs.31,500 through deed of sale registered on 17-11-1982. Mir Zaman, as tenant, pre- empted the sale and brought a suit against the vendee in the Court of Collector Chakwal. In the plaint averred that pre-emption was a tenant in occupation ofsuit property, which sold for Rs.
2. 15000 only and to ward off pre-emption claim, false and exaggerated sale price was mentioned in the sale-deed. Suit was contested by the vendee who raised number of pleas in defence. It was pleaded that the plaintiff had no cause of action; that the plaintiff had no locus standi to file the suit; that the plaint was under assessed for purposes of court-fee; that the suit was frivolous and vexatious. On merits, it was averred that suit property was purchased for Rs.41,500 out of which Rs.31,500 were paid before the Sub-Registrar and the rest was paid as advance money. As to the superior right, it was alleged that suit property was formerly in occupation of Saudagar, the plaintiff's father as tenant and on whose death, plaintiffs real brother namely, Muhammad Khan cultivated the suit property, who on receipt of Rs.1,000 as compensation, surrendered possession of suit property in .Favour of the vendee-defendant. It was further alleged that thereafter the suit property was in actual physical possession of the defendant. On the pleadings of the parties, as many as eight issues including that of relief were struck by the trial Court. Parties also recorded evidence in support of their respective versions. Learned Collector found that pre-emptor was not in possession of the suit property and dismissed the suit. His decision was maintained by the Member Board of Revenue. Only dispute raised in the petition is as to the superior right of pre- emption. Findings on rest of the issues are not contended. In support of superior right, plaintiff relied on the statement of Muhammad Khan son of Sher Jang, P.W. 1, Sultan Khan son of Fateh Khan, P.W.
3. 2, and his own statement as P.W.
3. Plaintiff also relied on copies of revenue papers to prove his possession as tenant. In defence, defendant apart from his own statement, produced Lal Khan, Lambardar. Iqrar Nama' executed by Muhammad Khan in favour of vendee on 15-11-1982, Exh. D-4 was also put in evidence. As regards revenue papers, in Khasra Girdawari, against Khasras Nos.
4. 2785, 2787, possession of Saudagar as tenant was recorded till Rabi 1983, whereafter vendee was shown to be in actual possession since Kharif, 1983. As regards Khasra No. 2812-Min. (34 Kanals) one Khan Muhammad son of Manga, was shown as tenant but in Kharif 1983, defendant's self- cultivating possession was recorded. Khasra No. 2812-Min. 53 Kanals 8 Marlas recorded as 'Ghair Mumkan Khunder was shown in possession of all the owners. Land measuring 8 Kanals 13 Marlas, Khasra No. 2812-Min. Was also recorded in possession of Saudagar, till Rabi 1983, when entry was changed and defendant was shown in possession. Though, Saudagar, had expired much before the suit, his name continued to be recorded in the revenue papers as tenant of the suit property and at no stage name of plaintiff was shown as tenant. Apart from the entries in revenue papers, P.W. 1 Muhammad Khan, in his statement in cross-examination clearly and in unambiguous terms had conceded that possession of the suit property was with Feroze, defendant. Exact words spoken by him are" .
5. His statement was recorded on 21-3-1984. Malik Muhammad Jaffar, Advocate, in course of hearing of the petition conceded that pre-emptor, had lost possession who was not in actual occupation of the suit property. It was submitted that defendant- vendee had dispossessed the plaintiff and had taken forcible possession of the suit property from him somewhere in 1983. It was admitted that the plaintiff did not take any step to regain on of the suit property till todate. He neither approached the reovsesneussio Court nor the Revenue Officer, the appropriate forums provided by law to recover possession. Despite this categorical statement of P.W. 1, pre-emptor in his own statement as P.W. 3 testified on oath that he was still in possession of the suit property and cultivated the same as its tenant. Pre-emptor's statement which was recorded by the trial Court on 24-4-1984 was obviously contrary to the clear concession given by P.W. 1 as also statement of learned counsel. It appears to be fully established that much before the decision of the pre-emption suit by learned Collector, plaintiff- pre-emptor had lost his possession over the suit property. Faced with this, it was contended by the learned counsel that though the pre-emptor was out of possession yet he was entitled to succeed, for a tenant in possession did not cease to be a tenant by the mere act of forcible dispossession. Two questions arise; (1) whether plaintiff was ever in possession of suit property as tenant of suit property; (2) whether a tenant once in possession but forcibly dispossessed, could still be regarded as tenant for pre-emption purposes and his pre-emption claim decreed. As regards the first question, on examination of record. I entertain no doubt that the Court had rightly found that plaintiff was not in possession of the suit property as its tenant. Finding of fact reached was that brother of the plaintiff namely Muhammad Khan, was in possession of the suit property after the death of his father, Saudagar, and had, in consideration for the compensation received, relinquished the possession in favour of the vendee. This finding, in my opinion, was amply justified on record. That apart, on plaintiff's own evidence, it was proved that he had lost possession of the suit property. Admittedly, no steps were taken by him to regain possession within the period of limitation prescribed by law. From this it can be safely inferred that he acquiesced in his dispossession. Under general law of pre-emption it is firmly established that decisive date as regards the right of pre-emptor to pre-empt the sale was the date of decree. In other words a pre-emptor, who claims the right to pre-empt the sale, must continue to possess the right till the date of decree. If he looses that right before the passing of the decree for pre-emption, decree for pre-emption cannot be granted even though he may have had such right on the date of suit. The same rules apply to a person who claims to pre-empt the sale as tenant under para. 25 of the Land Reforms Regulation 115 of 1972. Thus where during the pendency of a suit for pre- emption the pre-emptor looses possession he also loses his right to pre-empt and cannot obtain decree for pre-emption. Had he taken steps in time to recover possession forcibly taken from him, different considerations may have applied and the result may also have been different. However, it was not disputed that plaintiff did not choose to take any legal steps whatsoever to recover possession allegedly lost by him in result of the force employed by the defendant-vendee.
6. Therefore, the principle of law that once the person having the right has entered into possession, he does not merely by reason of a wrongful dispossession by the landlord or by a thirdperson cease to 'hold' the land under the landlord and is not deprived of the character of the tenant and the legal relation of landlord and tenant continues notwithstanding was clearly inapplicable to the case of an erstwhile tenant who was dispossessed not through due process of law but did not press in aid the legal remedies available, to have his status restored. Accordingly, on present record it cannot be successfully urged that learned Member Board of Revenue was guilty of any error of law or procedure when, he, in reversal of order of Additional Commissioner restored that of Collector.
7. Impugned decision was neither without jurisdiction nor without lawful authority. Rather it takes proper notice of all the relevant circumstances and the evidence present on record. I am, therefore, of the opinion that learned Member Board of Revenue was not erroneous in setting aside the order of the Additional Commissioner. Accordingly, in agreement with the learned Member, I find that no interference in constitutional jurisdiction can be caused. In the result of foregoing this petition is found to be without merit and is dismissed summarily.