' The facts briefly are that the respondent was a tenant of 15 kanals 11 marlas of land in joint khata No,764 (Jamahandi of 1978-79) consisting of 77 kanals 17 marlas. In 1975, three sales were made out of this Khata. Both the petitioner and the respondent challenged the sales in three separate pre-emption suits on the basis of their tenancy in this Khata. They both succeeded in these suits and as a result the respondent became owner of 9 kanals 6 marlas, according to a decree of 26- 10-1976, which was given effect through a mutation on 28-2-1977.
2. On 5-6-1982 the petitioner purchased 15 kanals 13 marlas land in the same Khata. A pre-emption suit was filed by the respondent on 26-2-1983 on the basis of his tenancy. The Collector on 11-1-1986 dismissed the suit of the respondent on the ground that since he had become a co-sharer in the Khata in 1976-77, he could not be a tenant in the same Khata any more. The respondent appealed against this decision to the Additional Commissioner (Revenue), Faisalabad who decided this appeal in favour of the respondent on 12-5-1986. The Additional Commissioner based his reasoning on the ground that by becoming a share-holder in the Khata, the respondent had not lost his status as a tenant elsewhere in the Khata. This order has been challenged by the petitioner before the present Court.
3. The present case hinges on the legal question whether a tenant becoming a share-holder in the joint Khata ceases to be a tenant, whatsoever the size of his acquisition and whatsoever the size of his tenancy.
4. The following arguments will determine the merits of this case:-- In a case as recent as PLD 1988 Lah. 277, it has been decided by the Lahore High Court that a tenant in a joint Khata ceases to be a tenant after becoming an owner in that Khata.
(II) Whereas a tenancy of a tenant is always a fixed charge, the ownership of an owner in a joint Khata is a floating charge. Therefore ownership of any piece of land in a joint Khata is a kind of floating, albeit a restricted, ownership over the entire Khata. It cannot therefore, be said that an owner is owner only to the extent of his acreage of ownership, and is a tenant in the same Khata over and above that acreage. This is the law as it stands, and the practice of Revenue Officers as well is based on it. Any deviation from it by a Revenue Officer in any regard is an aberration, arising either out of misconception of law or some other motive. Thus any tenant who acquires an ownership in Khata has to be careful about the implications of his ownership in it.
(III) To argue that a case where a tenant ceases, subsequently to acquire ownership in a joint Khata is different from a case where a co-sharer cultivates more land in the joint Khata than his ownership, would be to apply one law in one case and another law in another case, where the facts are the same.
(IV) If it is assumed that there is distinction between these two cases, how long is the tenant-owner supposed to retain his rights of tenancy alongwith ownership? Can he indefinitely continue to wear these two caps in the same Khata ? Obviously, allowing this duality would be giving birth to a number of other legal complications. For instance, in each case it would have to be examined retrospectively, whether the joint Khatas was ever a tenant as well in the Khata, and if he was his tenancy rights could have to be distinguished from his co-ownership rights. Doing this would lead to an infinite regress in the examination of record.
(V) In the law relating to joint ownership in a Khata, size of ownership, from the point of view of determining the status of a party, has never been taken into consideration.
(VT) Possession by any joint owner in a Khata is possession virtually on behalf of all the others.
Therefore when the respondent possessed certain area . Namely 15 kanals 11 marlas he possessed that not only on his own behalf but on behalf of all other co-sharers. He could no longer say that he was a tenant of his tenancy, but would have to be considered a co-sharer in possession of what was once his tenancy.
(VII) It is irrelevant in this case what the Revenue record said about the status of the respondent and what positions were taken by the parties, before the Collector and the Additional Commissioner. Had it been a question merely of fact, the law of claim, admission, and estoppel would come into operation. As it is, these things would not apply to negate a clear legal status.
(VIII) Entries in the jamabandi have a presumption of truth: they are not truth. A presumption of truth would not operate against the law. Therefore it would not avail to urge any entry in this regard in defence of a position which is legally groundless. In this connection I would make a distinction between an entry which is matter of fact, and an entry which is a consequence of law. The latter entries (and the status they confer) cannot be assailed by entries of fact which merely have a presumption of truth attached to them.
(IX) The Collector is not debarred from entertaining a pre-emption suit until the entries in the Revenue record on which a claim or defence is made have been changed in a separate litigation relating to correction of record. A pre-emption suit can proceed and be decided on merit, evaluating the law and the record.
5. On the basis of the above arguments I accept the revision petition, set aside the decision of Additional Commissioner (Revenue), Faisalabad dated 12-5-1986 and uphold the decision of the Collector, dated 11-1-1986. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.