' The land in dispute was and is still owned by the Government. It was held by respondent No.2 as a tenant under the provisions of law contained in the Colonization of Government Lands (Punjab)
Act, 1912. She sold the same in favour of the appellant through Mutation No.10 attested on 31-10-1973 for a sum of Rs.6,000 after obtaining permission for the said sale from the Collector under section 19 ibid. Respondent No.1 filed a suit for possession of the said land through pre-emption which was dismissed by the learned Civil Judge, Pakpattan vide judgment and decree dated 10-10-1977 holding that as the sale was of tenancy rights the same was not pre-emptible. Respondent No.1 filed an appeal which was accepted by the learned Additional District Judge, Sahiwal vide judgment dated 14-9-1978. The present second appeal has been filed by the appellant-vendee to challenge the said appellate judgment and decree. I have perused the record and have heard arguments.
2. The findings on only two issues, one relating to the valuation for purposes of court-fees and the other relating to the pre-emptibility of the sale in dispute were challenged in this second appeal.
However, in view of the latest position of law the learned counsel for the appellant has given up the contest on issue No.1 relating to the valuation of court-fees. No other issue is contested by any of the parties. Therefore, the contest between the parties now is in regard to issue No.2 and for that purpose it has to be examined as to whether the sale in dispute is pre-emptible or not. The learned first appellate court has held that the sale in dispute was of occupancy tenancy rights and therefore was pre-emptible under section 15 of the Punjab Pre-emption Act, 1913. So is the case of the learned counsel for respondent No.l. It is, therefore, to be seen whether the vendor Mst. Nur Sain respondent No.2 was holding occupancy tenancy rights in the land in dispute or she was a mere tenant or a tenant other than an occupancy tenant. As already pointed out above, the land in suit is governed by the provisions of law contained in the Colonization of Government Lands (Punjab)
Act, 1912. This is a special law and carries definitions of its own. The definitions contained in the Punjab Tenancy Act, 1887, therefore, are not applicable to the said Act V of 1912. It may also be added that the said Act of 1912 is not only a Special Law but is a latter law and therefore, the provisions of the same will apply notwithstanding the provisions contained in Act XVI of 1887.
Similarly, Act I of 1913 is a Special Law and is a law which is latter in time as compared to Act XVI of 1887. Therefore, the provisions of law contained therein will have precedence likewise. The definition of occupancy tenancy is not given either in Act V, 1912 or in Act I of 1913. As such some help is still to be taken from the definition given in Act XVI of 1887 just to see whether a tenant under Act V of 1912 can be termed as an occupancy tenant or not. The definitions and types of occupancy tenants are given in sections 5 to 8 of Act XVI of 1887. On the other hand a tenant under Act V of 1912 is a tenant who holds the land under section 10 or 15 of the said Act or under other similar provisions thereof.
To be particular, the definition of tenant given in section 3 of the Act V of 1912 specifically provides that a tenant means a person who is holding land in a Colony as a tenant of Government. In . View of the said definition and description of the tenant, a tenant remains merely a tenant under the Government under the terms and conditions issued under section 10 ibid and he is not an occupancy tenant. Reverting to Act XVI of 1887 it will be seen that none of its sections 5 to 8 admits of such a tenant of Government as an occupancy tenant. The two tenancies are in fact quite distinct and different. The rights of alienation and inheritance of an occupancy tenant are governed by the provisions of Act XVI of 1887 especially those contained in its Chapters V and V-A (sections 52-A to section 60-A). The right of alienation of a tenant under Act V of 1912 are governed by section 19 thereof while the mode of succession thereof is governed by section 19-A to section 23 thereof. Under Chapter V of Act XVI of 1887 there are virtually no restrictions on alienation of occupancy rights by an occupancy tenant. The only restriction is that he has to give a notice to his landlord so that if he likes, he may purchase the property before it is sold out to any other person and also on the price to be fixed by the Revenue Officer concerned. The occupancy rights under Act XVI of 1887 are not only alienable but also can be attached in execution of decrees or under orders of competent authority subject to the said right of the landlord. An occupancy tenant, therefore, can alienate his occupancy rights without any sanction from any authority. Similarly, the occupancy rights are heritable according to the said provisions of law contained in Act XVI of 1887 without any say of Revenue Authorities. On the other hand the tenancy rights under Act V of 1912 are not alienable without the written sanction of the Collector under section 19 ibid and the mode of inheritance thereof as provided therein is also quite different. Under subsection (6) of section 53 of Act XVI of 1887 if the landlord purchases the occupancy tenancy rights the rights of occupancy become extinct. The rights of tenancy under Act V of 1912 do not become extinct in any such event.
Either a tenant under that Act acquires right of ownership on payment of the price fixed by the Government or he loses his rights if he fails to fulfil the conditions of tenancy prescribed under section 10 thereof. Therefore, the occupancy tenancy rights as understood in Act XVI of 1887 are quite different from the tenancy rights defined and understood in Act V of 1912. As such section 15 of the Punjab Pre-emption Act, 1913 when using the term 'occupancy tenant' therein means to refer to the occupancy tenants as understood under Act XVI of 1887. It does not admit of a reference to a tenant under Act V of 1912. Accordingly, while the sale of the occupancy tenancy rights as defined and understood in Act XVI of 1887 falls under the ambit of clause (a) of section 15 of Act I of 1913, the tenancy rights as defined and understood in Act V of 1912 do not fall within the ambit thereof. It is significant to note that clause (a) of section 15 of Act I of 1913 speaks of a sale by an occupancy tenant; it does not speak of a sale by a tenant. Accordingly a sale of his rights by an occupancy tenant are pre-emptible only by operation of law under the said clause (a) of section 15 but the sale of tenancy rights held under Act V of 1912 has not been made so pre-emptible.
3. The learned counsel for both the parties have referred to Abdur Rehman Mubashir etc. v. Syed Amir All Shah Bokhari etc. PLD 1978 Lah. 113 at p.177. The learned counsel for the respondent interprets it to the effect that the sale of tenancy rights under Act V of 1912 is a sale of occupancy rights. However, the learned counsel for the appellant argues that in the said dictum of. The Honourable Supreme Court it was not at all examined whether the sale by a tenant under Act V of 1912 is a sale of tenancy rights or is a sale of occupancy rights. A reading of the said ruling will show that the point as to whether the sale in dispute at that time was a sale of only tenancy rights or of occupancy tenancy rights was not in issue. Similarly the point as to whether the tenancy rights held under Act V of 1912 amounted to occupancy tenancy rights or not was not in issue. Further it was also not in issue whether the sale of tenancy rights under Act V of 1912 was a sale under Act I of 1913 and was pre-emptible as such or not. Accordingly, the law laid down therein is not applicable to the facts of this case.
4. The word 'sale' is not defined in the Punjab Pre-emption Act, 1913. Therefore, we have to borrow its definition from section 54 of the Transfer of Property Act, 1882. According to the said definition, sale is a transfer of ownership in exchange for price paid or promised to be paid. The significant word is 'ownership'. A sale as such is a transfer of a right of ownership and not of any other right or any lesser right like the right of tenancy. For this purpose a reference, clause (a) of section 15 of Act I of 1913 is very useful (for interpretation of the word 'sale'). According to section 15 read with section 4 ibid the right of pre-emption is restricted to a sale. If the sale of occupancy tenancy rights were to amount to a sale there was no necessity of giving a specific and a separate right of pre-emption in respect of the occupancy tenancy rights. If the sale of occupancy rights could be a sale as understood in law relating to the right of pre-emption, the same should have not been given as an exception. I may hasten to add that right of pre-emption is available on a sale and only on a sale and right of pre-emption in respect of a sale of occupancy rights is an exception thereof. Therefore, even the sale of occupancy rights is not a sale within the meaning of law and it is pre-emptible only because it has been made pre-emptible specifically by force of law under clause (a) of section 15 of Act I of 1913. There is no such exception in respect of the sale of tenancy rights held under Act V of 1912. The tenancy rights held under Act V of 1912 do not amount to ownership and a sale thereof does not amount to a sale so as to be pre-emptible under Act I of 1913. On that account too, the sale in dispute is not pre-emptible.
5. The tenancy rights under Act V of 1912 are held under the statement of conditions, issued under section 10 thereof. Such rights are a grant by the Government and it is for the Government to grant the same to such a person whom it finds eligible for the same or entitled for the same. The Government as such has a right to accept a person as its tenant and similarly it has a right to refuse to accept a person as its tenant. This is why a restriction on a sale of tenancy rights has been placed under section 19 of the Act. No sale can be made without the permission of the Collector and a sale made without the same is void. The reason is that the Government wants that the tenancy should remain with the person who is eligible or entitled to get and retain the said tenancy and who can fulfil the terms and conditions laid by the Government. Permission under section 19 as such is not automatic and similarly the permission under section 19 ibid is not general but is specific for the person for whom it is made. Accordingly, the Collector has to give the permission not only for a sale but has to give the permission for sale in favour of a specific person.
The permission so granted holds good and enures for the benefit of the person in whose favour the permission is given or the person whom the Government accepts as a tenant in place of the original tenant. The permission in the present case, therefore, held good in favour of the appellant and could not hold good for any pre-emptor and so to say for respondent No.
1. In other words, the permission under section 19 ibid is only for and in favour of the appellant and its benefit cannot pass on to respondent No. 1 as there is no such permission in his favour. A vendee cannot purchase such rights without such permission. Similarly, a pre-emptor cannot step into the shoes of a vendee without such permission. We cannot impose a tenant on the Government by any means including by the passage of a decree for pre-emption. On that account, too, no person, howsoever superior right of pre-emption he may possess, can pre-empt the sale of tenancy rights held under Act V of 1912.
6. In view of the above discussion the sale in dispute is not pre-emptible. The appeal is accepted.
The judgment and decree, dated 14-9-1978 of the learned first appellate Court are set aside and the suit of respondent No. 1 is dismissed.
7. Because of involvement of law points, the parties are left to bear their own costs throughout.