' Brief facts of the case are that Khata No,79 of village Wadoor comprised of 594 Kanals 19 Marlas.
Out of that area 1/4th share was sold by one Muhammad Ilyas Khan to the respondent. Mutation No,8436 was accordingly sanctioned on 11-5-1981. Khasra No,1844/623/1 is the part of that Khata which measures 21 Kanals 5 Marlas. The petitioner being tenant on this Khasra number filed suit for pre-emption to the extent of 1/4th sold land 5 Kanals 6 Marlas, in the Court of AC/Collector, who after framing the relevant issues decreed the suit accordingly vide order dated 14-2-1984. Being aggrieved by the said order/decree the respondent filed an appeal before the Additional Commissioner on the ground that 1/4th share was sold out from the whole Khata so the petitioner is entitled to get his proportionate share from the whole Khata and not share from Khasra No,1844/623/1. The Additional Commissioner accepted the plea of the respondent and held that the petitioner is entitled to have 4 Marlas of land. The order/decree of the Collector was modified accordingly. Hence this revision petition under para.25(7) of MLR-115.
2. The case came up for hearing before me on 27th December, 1990, at Dera Ghazi Khan, when the petitioner and the learned counsel for the respondents, were present. The parties were asked to submit written arguments to enable me to dispose of the case which was more than 5 years old.
3. The learned counsel for the petitioner contended that the right of preemption ha- been given to a tenant under paragraph 25(3)(d) of Martial Law Regulation No,115, in respect of the land comprised in his tenancy. The Khasra number in dispute i,e, 1844/62311, measures 21 Kanals 5 Marlas out of which 1/4th share of this Khasra number had been sold to the respondent. The petitioner was tenant of the entire Khasra No,1844/623/1 and was therefore entitled to the decree on the basis of his superior right on 1/4th land comprised in his tenancy i,e,, 5 Kanals 6 Marlas. The learned Additional Commissioner had misread 1983 SCM R 293, as could be seen from the last para of this order. It is reproduced as under:- "This argument is devoid of any legal force. It is admitted that the petitioner was tenant-at-will of 30 Kanals of land bearing Khasra No,616 which was pre-empted by the respondent, he purchased 1/4th and to that extent his right is protected under paragraph 25(3)(d) of the aforesaid Regulations. Therefore, he would be entitled to 1/4th of total area under his cultivation which comes to 7 Kanals and 10 Marlas. Thus, this petition has no merit, and is, therefore, dismissed."
4. The learned counsel for the respondent in the written statement maintained that after the decision of the Supreme Court (Shariat Bench) of Pakistan, reported in PLD 1986 SC 360, no decree can be passed in favour of tenant pre-emptor. Further, in view of PLD 1990 Supreme Court (Shariat Bench) 865, there is no law of pre-emtpion in existence; and finally even if the tenant is to be given a decree, it is to be proportionate to the area under his cultivation qua the area of the holding Khata where the land is situated.
5. I have considered the arguments and perused the case record, and the record of the various Courts below. Para. 25(3)(d) of MLR 115 lays down "that a tenant shall have the first right Of pre- emption in respect of the land comprised in his tenancy." It does not refer to the entire holding or to the share of a landowner in a joint Khata/holding but refers just to the land comprised in the tenancy of the tenant. There is no doubt or dispute about this point that Khasra No,1844/623/1, measuring 21 Kanals 15 Marlas, was in the tenancy of the petitioner. If so, then the petitioner would have the superior right of preemption on 1/4th share sold from this Khasra number under his tenancy, without reference to the alienated share in the joint holding over which the petitioner was not a tenant. This view is strengthened by 1983 SCM R 293 where in a similar case it was decided that the right of the tenant is protected under paragrah 25(3)(d) of MLR 115 to the extent of the share of the joint Khata sold by a co-sharer. As regards the other objections raised by the learned counsel for the respondents regarding the maintainability of the revision petition, a reading of the PLD 1990 SC 865, shows that the pre-emption suits which had been decreed before 30th July, 1986, will be disposed of under the previous laws. In the instant case, the suit was decreed in favour of the petitioner by the Assistant Commissioner/Collector, D.G. Khan on 14-2-1984. Therefore, it is not affected by the judgments relied upon by the learned counsel for the respondent.
6. The upshot of the above discussion is that the revision petition succeeds, the impugned order is set aside and the order of the Collector dated 14-2-1984 alongwith the decree is restored.
7. The order was reserved and the parties shall be communicated accordingly.