1. FACTS One Muhammad Aslam sold his entire holding of 410 kanals 11 marlas through a registered sale- deed on 18-3-1981, for a sum of Rs.2 lac, to Qasim Khan, the present respondent. A suit for pre- emption to the extent of his tenancy of 240 kanals only was filed by Muhammad Hanif the petitioner on 5-4-1981. The AC/Collector dismissed the suit of the petitioner on 14-3-1982, on the ground that the petitioner was a lessee and not a tenant, and that the land falling in the Border Area was not pre-emptible. The petitioner preferred an appeal to the Additional Commissioner (Revenue) which was decided on 28-8-1983 in his favour. The respondent came to the Board of Revenue through a revision petition which was decided on 16-10-1984. The Board of Revenue remanded the case to the Additional Commissioner (Revenue) for a fresh decision, on the point that the status of the petitioner had not been determined by the Additional Commissioner, as the Additional Commissioner had not discussed the merits of the case. The Board of Revenue also directed that the Additional Commissioner should also examine the effect of the provisions of paragraph 24(6)(d) of MLR-115 on the present suit.
2. The case was decided by the Additional Commissioner on 22-9-1985 in favour of the respondent.
2. The present revision petition is against that order.
3. ARGUMENTS The following arguments will determine the merits of this case:-- (1)The petitioner produced the last khasra girdawari namely of Kharif 1980, before he filed the suit on 5-4-1981. The date of girdawari of Rabi 1981 of the concerned land is 9-4-1981. According to the girdawari he is shown as tenant of the suit land. And this has not been contested either before the Collector or before the Commissioner.
4. (2)The khasra girdawari produced and not controverted, shows that the petitioner had been tenant for at least 4 years before the suit, continuously.
5. (3)The last jamabandi also shows the petitioner to have been a tenant of the concerned land.
6. (4)This position has continued to-date.
7. (5)The case of the respondent before the Collector was not based on the entries in the khasra girdawari or in the jamabandi; his case was based on the oral evidence produced by him to show that the entries in the jamabandi and khasra girdawari were not in accordance with facts. The learned Collector has discussed the evidence of the two parties at length, and has come to the conclusion that, regardless of the record, the petitioner was a lessee and not a tenant. I'm afraid, the Collector has totally misread the evidence produced by the parties and drawn the wrong conclusion. For instance, the vendor says that in 1977-78 the petitioner was a lessee of 80 kanals whereas the jamabandi 1977-78 says that he was a tenant of 240 kanals. Again one of the respondent's witnesses (DW.I11) says that the petitioner was a lessee of only 40 kanals, which statement is corroborated by DW.IV and by the respondent himself. Now these two statements, apart from being inconsistent with each other, (88 kanals against 40 kanals) are at great variance with the record which makes him a tenant of 240 kanals. The inference from all this is that the witnesses were either deliberately giving false evidence, or were not in the know of the facts and.
8. Were making contradictory statements.
9. (6)There is a presumption of truth attached to the entries in the Record of Rights, if not to the entries in girdawari. It would normally not lie in the mouth of the landowner to keep sleeping over wrong entries in both khasra girdawari and jamabandi for years and then suddenly were up and take a contradictory stand. It seems to me that there was definitely a collusion, which is not unusual in such cases, between the vendor and the vendee.
10. (7)The Collector has placed reliance only on one point, and that is that the witnesses of the petitioner before the Collector say that the vendor took the batai for Rabi 1981, while he had already sold his land on 18-3-1981, and thus there is a contradiction between the date of the sale and the period of batai. In other words having sold his land on 18-3-1981, the vendor could not have obtained batai for Rabi 1981. On this sole ground, the Collector has disregarded the record as well as the evidence of the petitioner. Now it is very easy to believe that since the sale was made in the third week of March, there was understanding between the vendor and the vendee that the standing crops would be taken by the vendor, as he had made all the investment on it. This is exactly what the petitioner also has stated before my Court unprompted. There is no logical or inherent contradiction in this stand.
11. (8)The suit was instituted before the recording of girdawari of Rabi 1981, while a copy of the girdawari of Kharif 1980 was attached with the suit. The Commissioner, therefore, is absolutely wrong in saying that the last relevant girdawari has not been produced to support the suit.
12. (9)Despite the direction of the Board of Revenue, the Commissioner in the impugned order has again failed to discuss the merits of the case from the point of view of whether the petitioner was or was not a tenant. He has just mentioned that the girdawari for Rabi 1981 had not been produced in proof of cultivation, without realizing that girdawari was not in existence at that time. This one sentence dismissal of the entire case of the petitioner is extremely perfunctory and cannot be held to be a speaking order.
(10) I'm afraid, that the argument that two concurrent findings of facts may not be upset by the Board of Revenue, cannot be accepted. The jurisdiction of the Board of Revenue under revision is much vaster than that. The Board of Revenue cannot in the present case sit as a silent and helpless spectator when it knows that the findings on the fact of tenancy of both the Collector and the Commissioner were patently wrong, as discussed above.
(11) Two important legal questions arise in this respect. One of these is whether the decision of the Supreme Court, which makes 31-7-1986 as the cut-of date for pre-emption rights of tenants, adversely affects the present petition or not. The Supreme Court in `Question No.6' discussed hypothetical cases in which a pre-emption decree has been obtained by a tenant, which has been upset by a superior Court before 31-7-1986. The Ruling of the Supreme Court in such a case is that a decree of a trial forum, although upset by a higher Court, could be pursued even after 31-7-1986 by the tenant pre-emptor. This is true that in this question the phrase used by the Supreme Court is `trial forum', whereas no decree in favour of the petitioner was passed by the trial forum, namely the Court of the Collector. However, the Supreme Court itself has in the same judgment given permission to Courts to decide other cases, where facts may not be exactly in accordance with the various hypothetical cases framed by the Supreme Court itself in the judgment, in accordance with the principles laid down by the Supreme Court in these hypothetical questions. In the present case, the fact is that there was a decree obtained by the petitioner, not from the trial forum viz. The Collector, but in appeal from the Court of the Additional Commissioner (Revenue) on 28-8-1983.
13. This decree, of course, was overturned by the Commissioner in the impugned order when the case was remanded by the Board of Revenue. However, the essence of the case is the same as that envisaged in the hypothetical question No.6 framed by the Supreme, Court, i.e. That where there is a decree in favour of a tenant, which is upset by a higher Court before 31-7-1986, the tenant would have the right to agitate, in support of the earlier decree, after 31-7-1986. 1, therefore, hold that the present case is in principle on all fours with the decision of the Supreme Court in its Answer to Question No.6.
(12) Para. 24(6) (d) of MLR-115 says in effect that no pre-emption decree obtained by a tenant for an area in excess of subsistence holdings shall be operative; in other words, the provisions of para. 24 regarding impartibility of holdings shall not apply to a decree of pre-emption for an area which is less than a subsistence holding. In the present case the decree is for about 30 acres of land, which is well above a subsistence holding. The argument of the respondent is that since only a decree which is for an area less than a subsistence holding has been saved by para. 24(6) (d), and since the present decree is for an area which is much beyond a subsistence holding, therefore, it is not saved by the proviso.
14. I would not agree with this view. Agreeing with the position of the respondent would mean that if the present petitioner had been a tenant of less than 100 kanals, he would have succeeded in his suit, but since he is a tenant of 240 kanals his entire right of pre-emption has been extinguished. In other words, he must be punished by the law because he is tenant of more than 100 kanals. This reading of the law in para.24(6)(d) would be ridiculous. The right of pre-emption has its own limit which has been laid down in paragraph 24(6) (d) of MLR-115 from the point view of the impartibility of holdings. This has no relationship to the size of tenancies. It cannot be said that a tenant from the point of view of para. 24(6) (d) would have his right of pre-emption protected if his tenancy was of less than 100 kanals, and not protected if it was, for example, of 101 kanals. 1, therefore, hold that all that para. 24(6) (d) says is that the right of pre-emption shall only be exercised to the extent of subsistence holdings and not for the entire tenancy exceeding that limit. This para cannot be construed to invalidate the entire decree. Therefore, it is held that, although this question has not been discussed by any Court below the Board of Revenue, the decree of the Additional Commissioner, dated 28-8-1983 shall be construed as pertaining only to a subsistence holding out of the tenancy of the petitioner.
(13) Despite the direction of the Board of Revenue in clear words, the effect of para. 24(6) (d) has not at all been discussed by the Commissioner, whose decision merely reproduces the letter of the law.
15. 3.1 accept the revision petition and order as follows:-- (A)The petitioner is patently a pre-emptor.
16. (B)His pre-emption decree obtained from the Additional Commissioner (Revenue) on 28-8-1983 is still in the field and has been protected by the Supreme Court of Pakistan.
17. (C)The pre-emption decree shall not have any effect beyond a subsistence holding.
18. (D)The petitioner shall have the right of first choice in. Selecting the area against which he wants to exercise his right of pre-emption, regard being had to all relevant facts on the ground, which shall be determined by the AC.1 Grade in case of dispute. The principle of consolidation of holdings, irrigation rights etc. Shall be taken into consideration for this purpose.
(E) The petitioner shall be refunded the excess amount. Approved for reporting on the points: (1)The Supreme Court Question No.6 regarding cut-of date of 31-7-1986 applies also to cases where decree upset by a higher Court was notobtained from a trial forum, but from another Court.
19. (2)The proviso in para.24(6)(d) of M.L.R. 115 would apply to a decree obtained by a tenant of more than 100 kanals to the extent only of a subsistence holding; the whole decree would not be vitiated by the size of the tenancy being more than 100 kanals.