This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of a suit for possession filed by the petitioner against Sh. Mushtaq Ahmad, the predecessor-in-interest of respondents Nos. l to 5 in respect of land measuring 18 Kanals 11 Marlas seeking to pre-empt the sale made on 31-7-1974 by its owner Ghulam Mohyuddin in favour of Sh. Mushtaq Ahmad. The superior right of pre-emption was claimed on the basis that the petitioner was a tenant in respect of the land in dispute. The suit was originally filed before the Civil Court but was later or. Transferred to the Collector in view of the promulgation of Land Reforms (Amendment) Act, 1976.
2. The aforesaid suit was defended by the respondents inter alia on the ground that at the time of sale the petitioner was not a tenant as an order of ejectment was passed on 8-1-1974 against him by the Assistant Commissioner in execution whereof the possession of the land was also obtained.
3. The suit after its trial was originally dismissed by the Collector on 23-10-1977. However, on an appeal before the Additional Commissioner, judgment and decree of the Collector was set aside and the suit was decreed on 30-8-1977, whereupon the predecessor-in-interest of respondents Nos.1 to 5 filed a revision before the Member, Board of Revenue which was dismissed on 12-2-1985.
The predecessor-in-interest of the respondents Nos.1 to 5 came to this Court by filing Writ Petition No. 884 of 1985 which was allowed on 8-6-1991 and the revision was remanded for decision afresh to the Member, Board of Revenue. After the remand, the revision was dismissed on 25-5-1992 by Member, Board of Revenue. Again a Constitutional Petition (W.P. No.6796 of 1992) was filed in this Court which was accepted on 14-6-1994 and once again the revision was remanded for decision afresh to the Member, Board of Revenue.
4. In the post remand proceedings, the Member, Board of Revenue after hearing the 'arguments of the parties set aside the order of the Additional Commissioner and dismissed the suit for possession through pre-emption filed by the petitioner on 26-7-1995. This judgment and decree has been assailed in this petition.
5. Learned counsel for the petitioner has contended that the Member, Board of Revenue has acted illegally in holding that the petitioner had been dispossessed from the land in dispute before the suit for possession through pre--emption was filed. Learned counsel emphasised that this finding is primarily based upon Rozenamcha Waqiati which was not produced in evidence nor was it exhibited and as such could not have been relied upon. It was further argued that mere passing of an order of ejectment does not result in cessation of tenancy and as respondents have failed to prove that in execution of the order of ejectment dated 8-1-1974, the petitioner was actually dispossessed from the land comprised in his tenancy, he continued to remain a tenant and had a superior right of pre--emption.
6. Learned counsel appearing for contesting respondents has, however, maintained that with the passing of order of eviction of the tenancy in favour of the petitioner stood terminated on 8-1-1974 and the question whether or not possession was obtained in execution of the order was not of much importance. Learned counsel also emphasized that the finding of fact recorded by the Member, Board of Revenue that the petitioner had actually been ousted from the land in dispute much before the filing of the suit for pre-emption cannot be interfered with by this Court in the exercise of Constitutional jurisdiction.
7. The first question which falls for determination in the present petition is that what is the effect of an order of eviction having been passed against the petitioner by the Revenue Court on 8-1-1974. It is common ground between the parties that the aforesaid order was not challenged any further and has become final. Para. 25 of the Land Reforms Regulation, 1972 (MLR 115) confers upon a tenant the right of pre-emption in respect of the land comprised in his tenancy. However, the tenancy ceased to exist on an order of eviction having been passed against the petitioner on 8-1- 1974. He could not therefore pre-empt the sale made by the owner of the land to the predecessor of respondents Nos. 1 to 5 on 31-7-1974. Consequently, even if it be assumed that there is no evidence to show that the petitioner had actually been dispossessed in execution of the order of eviction yet he could not claim any right of pre-emption having ceased to be a tenant on the passing of order of eviction.
8. The proposition that a final order of eviction puts an end to the tenancy and the tenant is denuded from his status as such on passing of order of eviction appears to be settled in law. This question was considered by Peshawar High Court in another context in Jehandar and another v.
Bazir Khan and others 1990MLD 83 wherein it was held that after the order of eviction had been passed the person in possession cannot claim to be either a tenant for a lessee. The Indian Supreme Court in the case of Lakhmi Chand Khemani v. Kauran Devi AIR 1966 SC 1003 observed that under the ordinary law applicable to landlords and tenants, a tenant who has suffered an ejectment decree is not considered a tenant any more; he has after the decree none of the rights which as tenant he earlier possessed. The case of Cheta v. Baija and others AIR 1927 Lah. 452, decided by a Full Bench of Lahore High Court also supports this conclusion. In the last, a case from English Jurisdiction may also be mentioned. In American Economic Laundary Ltd. v. Little (1951) 1 KB p.400, it was observed that although by indulgence a tenant may be allowed to remain in possession after making an order of possession but it does not confer upon him the rights which he enjoyed before the order of possession was made and nor does he continue to remain as tenant.
For the foregoing, this petition is found to be without any merit and is dismissed, leaving the parties to bear their own costs: