KHALIL-UR-REHMAND KHAN, J.- Petitioner seeks leave to appeal against the judgment dated 17-6- 1996 of die Learned Judge of the Lahore High Court. Lahore dismissing the Constitution Petition filed by the petitioner to assail dip-order of the Member, Board of Revenue dated 26-7-1995 whereby the order of the Additional Commissioner was set aside and the suit for possession through preemption filed by the petitioner was dismissed.
2. The facts relevant for appreciating the questions raised in this petition are that the petitioner on 11-1-1975 filed a suit for possession to pre-empt the plot/land measuring 18-kanals 11-marlas sold.
Through registered sab deed dated 31- 7-1974, on the ground that being a tenant, lie was possessed of the superior right of pre-emption. The suit was originally filed, for the Civil Court but was later on transferred to the Collector in view of the promulgation of Land Reforms (Amendment)
Act, 1976. The suit was defended by the respondents inter alia on the ground that at the the of sale the petitioner was not a tenant, as an order of ejectment was passed on 8-1-1974 i.e., almost six months before the sale of the land in question, against the Petitioner/plaintiff by the Assistant Commissioner in execution whereof the possession of the land was also obtained, The order of eviction dated 8-1-1974 has admittedly attained finality as application under Order IX Rule 13 C.P.C, filed on 13-6-1974 was dismissed vide order dated 18-9-1974. And the appeal filed was then dismissed on merits on 11-12-1974.
3. The petitioner tiled yet another application for restoration of appeal and the same was also dismissed on 25-8-1975. The suit for pre-emption was dismissed by the Collector on 23-10-1977.
However, appeal before the additional Commissioner succeeded and the suit was decreed on 30- 8-T978 whereupon revision was filed before the Member Board of Revenue which was dismissed on 11-2-1985. The predecessor-in-interest of respondents filed a Writ Petition which was allowed on 8- 6-1991 and the revision was remanded for decision afresh. After remand, the Learned Member Board of Revenue again dismissed the revision on 25- 5-1992 and the High Court again in a Constitutional the said order and remanded the revision by accepting the Writ Petition on 14-6- 1994. The order then passed by the Learned Member Board of Revenue in the remand proceedings, accepting the revision petition, setting aside the order of Additional Commissioner and dismissing the suit of pre-emption, was challenged before the High Court. The view taken was that with the passing of order of eviction, the tenancy in favour pf the petitioner stood terminated on 8-1-1974 and as such he cannot claim the status of a tenant so as to maintain suit for pre-emption. This very plea, was reiterated before the High Court. It was added that the-Member Board of Revenue had 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 arid that the finding so returned was based upon Rozenamcha Waqiati which was neither produced nor was exhibited in evidence.
Precise plea was that passing of an order does not result in cessation of tenancy and as the respondents had 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 retain it as a tenant and had a superior right of pre-emption.
4. The plea that Khushi Muhammad, the petitioner continues to remain it possession of the laud in question as the order of eviction though passed had not been executed, cannot be accepted as the respondents have filed a copy of the order dated 3-3-1979 of the Assistant Collector whereby the application filed by the petitioner seeking restoration of tenancy was dismissed. In the presence of the said .Order, it is idle to urge that the order of eviction was not executed and that the petitioner continues -to be in possession of the land in question. Moreover, the question whether or not possession was obtained in execution of the order is not of much importance as the case of the Learned counsel for the respondents is that with the passing of order of eviction, the tenancy in favour of the petitioner-stood terminated on 8-1-1974 when the order of eviction was passed, arid since then the petitioner ceases to possess the status of a tenant, a qualification required to be possessed by a pre-emptor at the the of sale sought to be pre-empted, at the the of filing of the suit and also in retain the said qualification rill the date of the decree of such a suit.
5. Learned Judge of the High Court examined die question and in support of the proposition that a final order of eviction puts an end to the tenancy and a tenant stands denuded of the status on.
Passing of die order of eviction, referred to the cases of Jehandar and another v. Bazir Khan and others (1990 M LD 83- Peshawar), Lakhmi Chand Khemani v. KduranDevi (AIR 1966 SC 1003), Cheta v.
Baija and others (AIR 1927 Lahore 452) and American Economic Laundry, Ld v. Little (1951) HC.B. 400).
6. In the case of Jehandar (supra), it was observed that a person in possession cannot claim to be either a tenant or lessee after an order of eviction has been passed. It was further observed that in such a situation the tenant cannot be held to be holding over as this plea can only be set up when any period is specified in a lease deed and it expires but still the tenant continues in occupation of the property and regularly pays rent to the owner of landlord and the same is accepted by the latter. However, when a decree for ejectment of a tenant is made then it has to be executed or a fresh agreement of lease has to be entered into between the parties, otherwise the said person if not ousted from the land in execution of the decree would be in unauthorised occupation. The Indian Supreme Court in the case of Lakhmi Chand Khemani (supra) observed that under the ordinary law applicable to the landlords and the tenants, a tenant who lias 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. In the Full Bench case of Lahore High Court i.e. The case of Cheta (supra), which was a case under the Punjab Tenancy Act, it was observed that in a suit under section 45 decided against a tenant, the tenancy ceases and a person so ejected can sue hi civil Court for possession on the ground of occupancy right but proviso to section 77(3) of the Punjab Tenancy Act applies. If, in the course of the trial of that suit it becomes necessary to decide any matter which can under section 77(3) be heard and determined by a Revenue Court alone, the Civil Court shall decline to proceed further and deal with the suit in the maimer laid down in proviso
(1) to section 77(3). This case was sought to be distinguished by contending that the emphasis is on the person who had been dispossessed from the tenancy. This distinction is not relevant in the present context as even on the question of dispossession the finding of fact recorded is that the petitioner has been dispossessed. In the King Bench's case of American Economic Laundry Ld. the question was whether the tenant after the order for possession had been made and while it was in suspension was a statutory tenant. It was held that the expression "statutory tenancy" as used in the relevant Act is a compendious expression to describe the right of a tenant of protected premises to remain in possession of those premises, notwithstanding die determination of his contractual interest until such the as either he voluntarily gives up possession, or the Court, on cause shown, makes an order against him to deliver up possession. It was further observed that although by indulgence of the Court, a statutory tenant might be permitted to continue to occupy premises after the making of an order for possession, he was not, during such a period of occupation, a statutory tenant with all the rights to protection conferred by the Rent Restriction Acts which he had enjoyed before the order for possession was made and consequently, the daughter could not claim protection as a tenant under the law.
These cases, though have been decided with particular reference to the laws referred to therein but the principle of law deducible that a tenant who has suffered an ejectment decree is not considered a tenant any more, has been recognized.
7. Learned counsel was not able to cite any precedent to the contrary. We are of the opinion that the view of the law taken by the learned Judge of the High Court is sound. Therefore, we have no hesitation in affirming the same. Moreover, a pre-emptor/plaintiff has not only to show that he was possessed of the superior right of pre-emption at the the of sale but he was possessed of die same at the the of filing of the suit and continued to retain the said superior right till the date of decree of the suit. If he loses the said right at any stage during the pendency of the suit, his suit for pre- emption cannot succeed. Reference in this respect may be made to Hasil and another v. Karam Hussain Shah and others (1995 SCM R 1385). Muhammad Khan and others v. Muzaffar (PLD 1983 SC 181) and Rai Tulle}' Khan v. Ahmad Hassan Khan and others (1981 SCM R 1075).
8. The petition is without merit. Leave to appeal is, therefore, refused and the petition is dismissed.