' The facts in brief are that Ramzan etc. Petitioners purchased land measuring 133 Kanals and 1 Marla situate in Village Qila Chanda Singh, Tehsil and District Gujranwala from Hayat and others for a consideration of Rs,64,000 through registered sale-deed dated 19-6-1973. Maqbool Ahmed respondent pre- empted that sale claiming superior right being a tenant of the said land. Ramzan etc. Contested the suit. The learned A.C./Collector, Wazirabad decreed it in favour of Maqbool Ahmed respondent on 17-1-1983. The petitioner challenged the same before the Addl.
Commissioner who dismissed the suit vide judgment and decree dated 22-2-1984 holding that Maqbool Ahmad respondent was not a tenant but a lessee on payment of fixed rent at the rate of Rs,100. {{URDU TEXT}}Maqbool respondent challenged the said judgment and decree in the Court of Addl. Commissioner, Gujranwala Division by filing an appeal which was dismissed on 9-8-1984. The relevant para of his judgment is as under: "I have given my careful thought to the arguments addressed by the learned counsel for both the parties and have gone through the impugned order and record of this case. From the perusal of the Khasra Girdawari Ex.P3, it has been found that the appellant was paying fixed amount of Rs,100 per acre at the time of sale of the land, therefore, when he cultivated this land under the respondents he was paying 5 Mds. Of wheat per acre. In all the entries it is specifically written that he was paying fixed amount of rent. The words `chakota Sal Tamam' clearly prove that he was a lessee of this land. The definition of the tenant as to whether a lessee is also covered by the definition of the tenant or not, the Land Commission vide Press Note No,57 dated 7th June, 1973 clarified the matter that the word 'tenant' as used in paragraph 25 of the MLR 115 did not include a lessee. According to definition of a tenant as given in clause 13 of the paragraph 2 of the Land Reforms Regulation No,115, a lessee whether cultivating the land himself or through another person is not included in the definition of a tenant. In such circumstances it is proved that the appellant was holding this land as a lessee and not as a tenant. Thus he had got no superior right of pre- emption over the suit land. Finding given by the learned Collector calls for no interference. I, therefore, find no merits in the appeal and the same is dismissed hereby."
2. Feeling aggrieved, Maqbool Ahmad respondent filed a revision in the Board of Revenue which was accepted on 16-7-1985 and the suit filed by him was decreed. The operative part of the order of M.B.R. Is as follows: "I have heard the learned counsel for the parties. The point at issue is as . To whether the petitioner held the land as a tenant or as a lessee. According to the entries of register Girdawari tendered before the trial Court, the petitioner is entered as tenant-at-will on payment of cash rent for period 1971 to 1978 whereafter he is again recorded as tenant-at-will on payment of specific produce. By the nature of these entries and in the absence of any documentary proof that there was an agreement of lease by the petitioner, he has to be held as tenant-at-will having rights of preemption under MLR-115. The mere fact that he gave a statement in the trial Court that he was cultivating the land as `Thekedar' on payment of cash rent did not justify the findings of the lower Courts that the petitioner was a lessee and not a tenant. The character and the description of the entries of Register Girdawari which consistently describe the petitioner as tenant-at-will, vest the petitioner with the rights of tenant for the purpose of MLR-115. I, therefore hold that the findings of the lower Courts on this issue are misconceived and would set them aside in revision."
' In consequence he decreed the suit in favour of Maqbool Ahmad respondent. Hence this writ petition.
3. It is contended that the learned Member, Board of Revenue has misread the documentary as well as oral evidence. He failed to consider the admission of the respondent before the trial Court that he was cultivating the land as a Thekedar on payment of cash rent. Being a lessee he was excluded from the definition of tenant as given by Ordinance 5 of 1982, and the right of pre- emption did not vest in him.
4. Maqbool Ahmad respondent has resisted the petition. Learned counsel appearing on his behalf submits that the nature of rent or mode of payment is not relevant for determining the status of a tenant and his status is to be determined by the entries in Jamabandi and Register Girdawari. He has cited Bhapoo Khan v. Noor Din and others (PLD 1985 Rev. 203) where it was held that the payment of rent in cash and description of a person as `Thekedar' would not reduce him to the position of lessee. Lal Din v. Bashir Ahmad (1991 SCMR 228) has also been cited where it was held that a person holding land on payment of rent consisting of fixed amount was a tenant entitled to the right of pre-emption as provided under the law.
5. 'Tenancy' is in fact created by the nature of the relationship of the landlord that he has with the person to whom he gives the land for use and occupation. It is not always essential to organise this relationship by an express contract. It can effectively emancipated by implication by the conduct of parties. Even if Maqbool Ahmad respondent was holding the land on payment of rent consisting of fixed amount of cash, he was, a tenant for all intents and purposes and was entitled to the benefit of para. 25 of MLR 115. Learned counsel for the petitioners has mainly relied upon a judgment of the Peshawar High Court in the case of Said Hakeern etc. v. Shandad etc. Reported as PLD 1988 Pesh.54 and has argued that payment of rent in cash to the landlord deprived the respondent of the status of a tenant. He contended that the tenant who is bestowed with first right of pre- emption, must be a tenant paying the share of produce in kind and a person who is possession of land on payment of cash rent does not qualify as a tenant entitled to the first right of pre-emption.
6. The learned counsel, however, lost sight of Lal Din's case 1.991 SCMR 228 which thrashed out the relevant law as well as the precedents including that of Said Hakeem's case. The finding given in Said Hakeem's case stands overruled by the verdict delivered in Lal L. In's case. In view of this position a person holding land on payment of rent consisting of a fixed amount irrespective of the crop, for all intents and purposes is a tenant entitled to the right of pre-emption as provided under the law.
7. The petitioner's contention is that he is a tenant whereas the case of the respondent is that he is not a tenant, but a lessee. The distinction between `tenancy' and 'lease' contemplated by MLR 115 has not been clearly spelled out by any provision thereof. These words as such were not defined in MLR 115. Subsequently, however, it was provided that the word "tenant" used in para.25 of the said Regulation shall have the same meaning as assigned to it in clause (26) of Section 4 of the West Pakistan Land Revenue Act, 1967.
8. Section 4(26) of the West Pakistan Land Revenue Act, 1967 defines `Tenant' as under:- "4(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 other person, and includes the predecessors and successors in interest of such person, but does not include a mortgagee or a lessee."
A lease' is defined by Section 105 of Transfer of Property Act as under:- "105. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferer by the transferee, who accepts the transfer on such terms."
9. Even in common parlance `theka' of 'lease' implies a contract of occupation of land for a fixed term. Thus in my view the distinguishing factor between the two words namely 'tenancy and 'lease' is not the mode of payment of rent but the period for which the land is rented out by the landlord.
In case of a lease, it should be for a fixed period but in case of tenancy the occupier holds on the land till the same is terminated expressly or by implication.
10. In the instant case oral as well as documentary evidence indicates that Maqbool Ahmad respondent was in possession of that land on payment of rent without any restriction as to the period of occupation. He was, therefore, a tenant c having the first right of pre-emption.
11. Consequently, I am of the view that the Member, Board of Revenue had rightly held Maqbool Ahmas respondent to be a tenant over the suit land. Finding absolutely no illegality, much less jurisdictional defect in the impugned order, the writ petition is dismissed with costs.