' SHAFIUR RAHMAN, J.---Lcave to appeal was granted in these two appeals to examine an identical question of law viz. What does the expession "as, from Kharif a tenant shall have the first right of pre-emption in respect of the land comprised in tenancy imply in exact point of time for the purposes of pre-emption.
2. The Civil Appeal No,238 of 1988, the pre-emptors are the appellants;' the sale in favour of the respondent No,1 took place by attestation of the mutation on 28-3-1972. The area sold was 32 Kanals situated in Mauza Nawabpur Awal, Tehsil and District Mukan. The suit of the appellants filed in the trial Court on the ground that the vendee was immediately before the preempted sale a tenant of the land purchased and in that capacity he had as from Kharif 1972, the first right, or the superior most right of pre-emption, which the pre-emptors could not match. The District Judge reversed this finding on appeal and decreed the suit by observing as hereunder:--- "Martial Law Regulation No,115 was enforced from Kharif 1972. The present suit was instituted on 25- 4-1973; whereas the sale in suit was effected on 25-4-1972. Naturally and it is also an admitted fact that the right of premption to a tenant was given after the sale in suit and before the institution of the suit. As noted above the right could not be conferred upon the defendant vendor respondent retrospectively from the date of the sale in suit. Thus as there was no existing right of preemption conferred upon the tenant at the time of the sale in suit, the defendant vendee after purchasing the suit land ceased to be its tenant and became full owner of the suit land.
3. In Civil Appeal No,239 of 1988 also the same pre-emptors are the appellants, the sale in favour of the same respondent took place in this case too by attestation of the mutation on 25-4-1972. The area sold was 25 kanals located in the same village. The suit was dismissed by the trial Court and decreed by the first appellate Court.
4. The High Court by the impugned.Consolidated judgment reversed the finding of the first appellate Court on two grounds as hereunder and restored the judgment and decree of the trial Court:--- "In the present case, the plaintiff-respondent had a preferential right of pre-emption on the date of sale but he was not able to retain this right at the time of filing of the suit as in the meantime a superior, contender had come in the field through M.L.R.
115. At the time of suit and also at the time of the decree the present appellant was admittedly the tenant in the land who had a superior claim of preemption over the plaintiff and was, therefore, fully armed to resist the claim of the plaintiff being superior, inright of pre-emption.
"The suit was instituted on the last date of limitation with a ridiculously low court-fee of Rs,1,500 without any regard to the actual valuation of the suit property. It took full two years for the plaintiff to arrange the schedule of net profits and he made up the court-fee, only in 1975 and during all this period he never cared to apply to the Court for extension of time for making up the court-fee. Such a. Conduct is contumacious and negligent and I am in agreement with the learned counsel for the appellant that the plaintiff's suit could be dismissed on this ground alone."
5. It is important to note that the High Court took the view that Kharif 1972 had not in point of time yet started on 28-3-1972 or 25-4-1972 when these sales took place. This is apparent from the following observations:--- "The MLR 115 came into force with effect from Kharif 1972 and the first right of pre-emption was given to the tenants only on that date. On 28-3-1972 and 25-4-1972 therefore, the tenant had no right of preemption by which he could challenge the superior right of pre-emption of the respondent who was admittedly a collateral of the vendors. -
6. By the time these appeals came up for hearing before us, all the three grounds, two finding a place in the impugned judgment of the High Court and the third taken note of in the leave granting order have all been disposed of by well-considered judgment of this Court.
7. The first question whether a tenant who had ceased to be a tenant before Kharif, 1972, by becoming an owner of his erstwhile tenancy, could invoke his erstwhile tenancy for matching, challenging, or defeating the right of a pre-emptor on the date of sale was considered by this Court in Fazal Khan and another v. Ghulam Rubbani PLD 1983 SC 265 and answered as hereunder:- -- "The position of the vender /defendant, is, however, different, in that the law permits in his case any improvement in his status qua-the rights of pre-emption, provided such improvement takes place before the institution of the suit. But, in the present case the question is whether any improvement in the rights of the appellants had taken place before the institution of the suit on 2-7-1972. They rely on the right of pre-emption created in favour of the sitting tenants on the land comprised in their tenancies, and this right became vested expressly with effect from Kharif 1972 and not retrospectively from any prior date. Plainly, therefore, the right of pre-emption created by this provision of law was available only to persons who were tenants on the date of the enforcement of this law or in the future. The learned Single Judge has held, that since on the vesting of the ownership right in them, their status as tenants came to an end, they ceased to be tenants with effect from the date of sale viz. 12-7-1971 and, therefore, on the date of the coming into force of the provisions of Article 25(3) of the Land Reforms Regulation they were no longer tenants so as to be vested with the right of pre-emtpion created thereunder. The question of improvement in the status of the appellants, therefore, does not arise since no superior rights were created in their favour under the provisions invoked by them. Once they became owners they could not claim any right as tenants as their rights as tenants would be extinguished by merging of the interests of tenants into ownership rights."
8. The second question as to in what circumstances the suit of the plaintiffs can be defeated on failure to make up the, deficiency in court-fee, was reconsidered in Shahna Khan v. Aulia Khan and others PLD 1984 S.C. 157 and on the standard laid down therein the pre-emptors' suits under consideration were not liable to be dismissed.
9. The third question as to when does exactly in point of time kharif season begin in the Punjab and N.-W.F.P. Was considered and decided in Shahzad Gul and Sarwar v. Ziarat Sher (Civil Appeals Nos.
21-P and 22-P of 1987 decided on 30-1-1991 followed by Review Petitions in the same. It was held therein that in the Punjab and N.-W.F.P. It starts from 1st of May. This was held and reaffirmed by amongst others, a reference to the Standing Order No,2 (Agricultural Assessment of Land) of the Revenue Commissioner of Sindh which provided for the purposes of Sindh as hereunder:--- "The year in Sindh is divided for the purposes of assessment into two seasons as under:--- ' Kharif---1st April to 30th September. Rabi----Ist October to 31st March.
' The same land is assessed once only in each season and the maximum number of' assessments chargeable in a year for the same survey number is two."
10. Mr. A. Waheed Saleem, Advocate, the learned counsel for the respondent has done some creditable research on the subject and has documented his point of view directed at establishing that in the Punjab the sowing of the Kharif crop starts by and large in the middle of February and that, in any case could be taken to be the starting point of Kharif. He has also pointed out a decision of Munir Ahmad v. Muhammad Siddique represented by Legal Heirs and another PLD 1973 Note 118 which was omitted from consideration in the two appeals refered to in para 9 of the judgment. This is notwithstanding that the Kharif harvesting period had been fixed by both the Canal as well as the Revenue Authorities in the months of September and October. The learned counsel has obtained a Certificate from the University of Agriculture stating that Kharif starts from 1st April and ends on 30th September in the Punjab based on three books on Agriculture.
11. As regards some statutory instruments like the notifications of the Colonies Department for grant of land to persons whose land has been washed away by river action, it provides as hereunder:- "Kharif season" and `Rabi season' mean the season of approximately six months each generally known as the Kharif and Rabi seasons, respectively and should any question arise whether the date on which anything has been done or shall be done, falls in one season or the other, the question shall be decided by the Collector, whose decision shall be final."
' The Punjab Land Administration and Management Manual provides for the 'Harvest Inspections' of Kharif crop to start from 1st of October and for Rabi crop on 1st of March (Para. 349 page 155).
12. The learned counsel has referred to Annexure X to the Canal and Drainage Act, 1873 containing Principal Crops Grown on the Canals in the Punjab for showing that in the Punjab sowing of sugar- cane, maize and a, number of other crops takes place in February/March and extreme case being of "Lusan" whose sowing takes place in October and the harvesting period lasts from December to June. If we take the cropping pattern for Canal Districts of the Punjab, then there would be only one season in the Punjab beginning in October with the sowing of "Lusan" and ending in October with the harvesting of the main Kharif crops. Such cannot be the standard because Canal irrigated areas afford an opportunity of manipulating the crop just as green house treatment does. Besides, we have to go by the practices and the statutory provisions made in this respect. They all lead to the same conclusion notwithstanding the crops and their sowing pointed out by the learned counsel for the appellant at which we have arrived in the Civil Appeal referred to in para. 9 of the judgment.
13. In the circumstances, and for the foregoing reasons, following the law laid down by this Court in three separate judgments i.e,, in the case of Fazal Khan and another PLD 1983 SC 265. Shahna Khan PLD 1984 SC 157 and Shahzad Gul and Sarwar Civil Appeals Nos.21-P and 22-P of 1987, we hold E that the sale made by the respondents could not by protected against the preemption claim and hence accept these appeals, set aside the judgment of the High Court and restore the judgments and decrees of the first appellate Court with no order as to costs.