JUDGMENT MAULVI ANWARUL HAQ, J. - This judgment shall decide Writ Petition No. 3178/84 and C.R.
No. 1632/89, as they involve common questions and were ordered to be heard together.
2. The petitioner purchased the suit land vide registered sale-deed dated 27.1.1982 for a consideration of Rs. 31,250/-. The respondent (Lai Din) claiming that the land is comprised in his non-occupancy tenancy, filed a suit on 3.2.1982 for possession of the suit land by pre-emption. The suit was resisted by the petitioner. Issues were framed. Evidence of the parties was recorded. The A.C./Collector, Bhalwal dismissed the suit vide judgment and decree dated 29.3.1983. An appeal filed by the said respondent was heard by a learned Additional Commissioner (Revenue), Sargodha Division who allowed the same and decreed the suit subject to payment of Rs. 31,250/.
The petitioner then filed a revision petition which was heard by a learned Member, Board of Revenue, who dismissed the same on 19.6.1984.
3. On 1 7.11.1982 the petitioner filed a civil suit against the respondent, In the plaint, it was stated that she had purchased the suit land; that the respondent was a lease on year-to-year basis; that the lease expired in June, 1982 and was not renewed whereafter one Usman was let-out the land. With these averments,' a declaration was sought that the petitioner is in possession of the suit land. This suit was resisted by the respondent who stated that he is a non-occupancy tenant and that the suit has been filed to defeat his suit for pre-emption. Issues were framed. Evidence of the parties was recorded. The learned Trial Court decreed the suit on 26.11.1987. A first appeal filed by the respondent was heard by a learned Addl. District Judge, SargOdha who allowed the same and dismissed the suit filed by the petitioner vide judgment and decree dated 3.5.1 989.
4. Writ Petition No. 3-168/84 has been filed by the petitioner against the decree passed in the pre- emption suit while C.R. No. 1632/89 has been filed by the petitioner against the dismissal of her civil suit.
5. Both the learned counsel agree that since the learned Addl. District Judge has mainly relied upon a decree passed by the Additional Commissioner in favour of the respondent, it will be appropriate that the writ petition be heard first to see as to whether the decree passed by the Additional Commissioner is valid or not.
6. Learned counsel for the petitioner contends that the respondent was a lessee who stood excluded from the definition of tenant as contained in para 2(13) of the Martial Law Regulation 115.
According to the learned counsel, mere fact that the respondent was paying the cash rent is enough to hold that he is a lessee. Learned counsel for the respondent, on the other hand, contends that there is no such condition in the said para 2(1 3) that a tenant paying cash rent would not be a tenant within the meaning of said para 25(3)(d) of MLR 115.
7. I have gone through the copies of the record, app ended with these two proceedings, with the assistance of the learned counsel for the parties.
8. Learned counsel for the petitioner relies on the case of "Faqir Muhammad and others Vs. Muhammad Rafique and others" (1986 CLC 1028) and "Muhammad Ashraf Vs. Member (Revenue)
Board of Revenue, Punjab, Lahore and 18 others" (1984 CLC 2950) in support of his contention. I have examined the said judgments. I am afraid, the same do not at all support the argument of the learned counsel, In both the said cases, the person claiming to be a tenant was holding the land under a lease deed ( . ) for a fixed period on payment of premium and agreed rent, it was on this basis that their lordships came to the conclusion that person so in occupation under the terms of a lease deed is a lessee and unlike the term of M.L.R. 115 is governed by the term of his lease and as such he is not a tenant as defined in para 2(13) of the M.L.R., 115. ^
9. In the present case, it is true that in one set of revenue record produced by the respondent before the Collector, the Lagan is mentioned as half share of the produce while in the set of the revenue record produced by the petitioner, the Lagan is mentioned as Rs. 20/- per Acre per annum.
However, the fact remains that in all sets of "revenue records,, in column No. 4 which pertains to the possession, the respondent is entered as " c3r%?c->l/r". Now this is a term which is commonly used for a nonoccupancy tenant, it has also been held by the apex court in several decisions Reference be made to the case of "Shad Muhammad l/s. Khan Poor" (PLD 1986 Supreme Court 91) that whereas presumption of correctness is not attached to the column of Lagan but it is so attached to the column of possession. I, therefore, find that the respondent has been validly held by .The learned - Addl. Commissioner as also the learned Member, Board of Revenue to be a non- occupancy tenant within the meaning of M.L.R., 115,
10. I may here point out that a perusal of the pleadings in the pre-emption suit would show that it was not even pleaded by the petitioner that the respondent is a lessee. Needless to state that the terms of alleged lease were neither pleaded nor proved on record. I, therefore, hold that the learned Member, Board of Revenue and the Addl. Commissioner have acted within their jurisdiction in passing a decree for possession of suit land by preemption in favour of the respondent.
11. Having found the judgment and decree of the learned Addl. Commissioner in accordance with law as well as evidence on record, I do not find any case being made out within the meaning of S. 115, C.P.C, for interference with the impugned judgment and decree passed by the learned Addl.
District Judge. Both the Civil Revision as also Writ Petition, are dismissed with costs.