In this writ petition the order, dated 30th May, 1983, passed by the learned Member, Board of Revenue, Punjab, has been challenged.
2. The brief facts are that Allah Ditta, writ-petitioner, purchased land measuring 12 Kanals from one Bashir Ahmad in Chak No. 14/1-L, Tehsil Okara. Abdul Aziz (now deceased and represented by his legal heirs) challenged this sale by filing suit for possession through pre-emption under paragraph 25 of Martial Law Regulation No. 115 of 1972. The suit was ultimately decreed by the learned Assistant Commissioner with power of Collector, vide order, dated 11-5-1977. The appeal of Allah Ditta was accepted by the learned Additional Commissioner, Revenue, Lahore, and the decree passed in favour of Abdul Aziz was set aside. The matter was brought before the learned Member, Board of Revenue, in revision, by Abdul Aziz, which was accepted and the original decree was restored vide order dated 30th May, 1983.
3. The main contention of the learned counsel for the petitioner is that Abdul Aziz was not tenant in terms of paragraph 25 of the Martial Law Regulation No. 115 of 1972, inasmuch as the land in dispute was given on lease to one Mukhtar Ahmad by Bashir Ahmad vendor and that Mukhtar Ahmad, in turn, had given the same to Abdul Aziz, who was cultivating that as tenant of Mukhtar Ahmad. He, therefore, argued that the tenant who had the right of pre-- emption under paragraph 25 of the said Martial Law Regulation does not included tenant' of lessee. He relied upon the following wording in paragraph 25 of Martial Law Regulation No. 115 of 1972:-- "All the suits for enforcing the right of pre-emption in respect of land comprised in a tenancy shall be exclusively entertained heard and decided by the Collector within whose jurisdiction the land in respect of which the right of pre-emption has been claimed is situated, and all such suits Which may be pending in any Court immediately before the commencement of the Land Reforms (Amendment) Ordinance, 1976, shall, on such commencement, stand transferred to the Collector concerned. "
4. Accordingly, he submits that the order of the learned Member, Board of Revenue, is not tenable in law and, therefore, should be set aside by restoring the order of the learned Additional Commissioner (Revenue) dated 10-10-1982.
5. Mr. A Karim Malik, Advocate, learned counsel for the respondents, states that the definition of 'tenant' as given in the relevant enactments, includes tenant' under the lessee. He referred to the definitions of 'tenant' as given in the Punjab Tenancy Act and the Punjab Land Revenue Act, 1967. In the latter enactment the 'tenant' is defined as follows: -- "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 the land to that other person, and includes the predecessors and successors-in--interest of such person, but does not include--- (a)a mortgagee of the rights of a land owner, or (b)a person to whom a holding has been transferred or an estate or holding has been let in farm, under the provisions of this Act, for the recovery of an arrears of land revenue or of a sum recoverable as such an arrears; or (c)a person who takes from Government a lease of unoccupied land for the purpose of subletting it. "
In the Punjab Tenancy Act, this word is defined as follows: -- "'Tenant' and 'landlord' include the predecessor and successors-in--interest of a tenant and landlord, respectively."
6. Learned counsel for the respondents also relied upon a notification issued by the Land Commission under paragraph 4.8 of Martial Law Regulation No. 115 on 23rd April, 1973, according to which the definition of "tenant" as given in the Punjab Land Revenue Act was adopted for the purpose of paragraph 25 of M.L.R. 115.
7. Learned counsel for the respondents also referred to section 105 of the Transfer of Property Act to contend that a "lessee" is a transferee of right to enjoy property for a certain time or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops etc.
8. Admittedly, Abdul Aziz was a tenant and in cultivating possession, though the land in question was given to him for cultivation as tenant by Mukhtar Ahmad, who was a lessee of Bashir Ahmad, the vendor. The argument that since Abdul Aziz was a tenant under Mukhtar Ahmad and not under the vendor, did not make any material difference, as his status as a tenant did not alter. It was the land comprised in tenancy which conferred right on the actual tenant. Abdul Aziz was admittedly in cultivating possession as tenant of the land in question, therefore, under paragraph 25 of M.L.R. 115 of 1972 had the right to file suit for possession on the basis of his pre-emptive, right in respect of the land of which he was the tenant. This precise question came up for consideration in the case of Muhammad Yousaf v. Province of Punjab PLD 1976 Lah, 328, wherein it was held as follows: -- "As discussed above, only such lessee in this definition is excluded who is covered by the definition of 'landlord' but not that of the 'tenant'.
So the tenant who answers the requirements as given in section 4(26) of the Land Revenue Act still has the protection of para. 25 of MLR 115 and the exclusion is only of that lessee who is not cultivating the land himself. The sum and substance of the whole discussion is that there is no distinction between the lessee and a tenant as discussed above. Secondly, the Colonization of Government Lands Act specifically terms its grantees as 'tenants' and not 'lessees'. Thirdly, the 'lessee' referred to in that notification is not a 'tenant' but a 'landlord'. What has been adopted is the definition of 'tenant' under section 4(26) and what has been excluded is the 'lessee' who is included in the definition of 'landlord' as given in section 4(12) of the Land Revenue Act, 1967."
In Dost Muhammad v. Kazim Shah PLD 1978 Rev. 33 (N.-W.F.P.) it was held that, 'tenant is~a person who actually cultivates land on behalf of others'. The learned Member, Board of Revenue, in the order impugned herein has rightly observed that, "there are clear directions of the Punjab Land Commission, which were issued on 10-8-1973, that a tenant under a lessee has the same right of pre--emption as a tenant under an owner. "
9. In this view of the matter, the impugned order passed by the learned Member, Board of Revenue, is unexceptionable. This writ petition is, therefore, dismissed without any order as to costs.