ABDUL SHAKOOR PARACHA, J.- I intend to dispose of this writ petition alongwith W.P. No. 15284 of 2000 as common questions of law and facts are involved in both of them.
2. Through this Writ Petition (W.P. No. 15283/2000) the petitioners have assailed the orders dated 13.11.1985 of A.C. (Collector) Ferozwala, Sheikhupura (respondent No. 3), dated 24.11.1987 of Additional Commissioner, - Lahore Division (Revenue) , (respondent No. 2) and order dated 30.5.2000 of Member (Judicial-Ill), Board of Revenue, Lahore (respondent No. 1).
3. Writ Petition No. 15283/2000.
The disputed land, the subject-matter of this petition was 8 Kanals bearing Khewat No. 225, Khatuni No. 224, square No. 24, Killa No. 13(2-4), Khatooni No. 582 square No. 78, Killa No. 5 (5- 16) situated in village Hardo Ladheke, Tehsil Ferozewala District Sheikhupura, which was pre-empted by respondent No. 4 Din Muhammad, out of land measuring 605 Kanals, 1 2 Marlas situated in the above stated Mauza, purchased by petitioners Rasul Bakhsh etc., for consideration of Rs.2,20,000/- from M/s. Nawab Zada Raziq Ali Khan, Nawabzada Abid AN Khan sons of Nawab Arshid AN Khan and Mst. Abdul Nisa Begum widow of Nawabzada Sajid AN Khan. .
4. Writ Petition No. 15284/2000.
Subject-matter of this writ petition is land measuring 26 kanals, 19 marlas, bearing Khewat No. 225, Square No. 24 Killa No. 2/2 (1-13) and 8(1-6) Khatooni No. 724 square No. 22 Killa No. 7(8-0), square No. 24 Kiolla No. 9(8-0) and 10(8-0) situated in the above-mentioned Mauza, which was pre- empted by respondent No. 4 Mst. Zaitoon daughter of Naul Khan, out of land measuring 605 Kanals, 12 Marlas situated in village Hardo, purchased by the petitioners Rasool Bakhsh etc. For consideration of Rs.2,20,000/- from the above-named persons.
5. The suit was find in the Court of A.C. Ferozewala under para 25(3)(d) of Martial Law Regulation No. 115, which was resisted by the petitioners on the ground that the respondent was not a tenant within the meaning of para 25(3-D) of MLR 115.
6. From the divergent pleadings of the parties issues were framed by the Assistant Commissioner/Collector, Ferozwala. The suit was decreed on 13.11.1985 by the learned Collector on the ground that the respondent was a tenant at the relevant time within the meaning of the above provision of Martial Law Regulation, 1972. Appeal of the petitioners was dismissed on 24.11.1987 by the Additional Commissioner (Revenue) Lahore Division, and revision find thereagainst also met the same fate as it was dismissed by the Member (Judicial-ll), Board of Revenue vide his order dated 30.5.2000. Hence this writ petition.
7. The Member, Board of Revenue while dismissing the revision petition observed:- "If we strictly interpret the law, the respondents might not fall in the strict sense of the definition as tenant but so far as pre-emption suit is concerned, I will treat them as tenant. I will determine their tenancy from Kharif/1977 on the basis of their possession."
8. The learned counsel for the petitioners has argued that the respondent was not a tenant in the suit land within the meaning of para 25(3)(d) of the M.L.R. No. 115 and that the definition as envisaged in Section 4(26) of the Land Revenue Act, 1967, which gives the definition of the tenant, has to be applied in this case because no definition of tenant has been given in para 25 of the Land Reforms Regulation, 1972.
9. The writ petition was admitted for regular hearing vide order dated 25.6.2000 in presence of learned counsel of respondent No. 4, namely, Mr. Karamat AN Butt, Advocate who accepted notice on behalf of respondent No. 4. In view of the above, it was ordered that no formal notice heed be issued to the said respondent. Nobody entered appearance on behalf of the respondent in spite of the fact that name of the learned counsel for the respondent namely Mr. Karamat AN Butt, Advocate has appeared in the cause list.
10. The only question for determination by this Court is whether the respondent was a tenant at the relevant time in the suit property and therefore had superior right of pre-emption being a tenant under para 25(3)(d) of the MLR No. 115- It is admitted position that there is no definition of the tenant given in para 25 of the M.L.R. No. 115. The definition of the tenant as contemplated in Section 4(26) of the Land Revenue Act, 1967 is as under:- "(26) 'tenant' means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent to that other person, and includes the predecessors and successors-in-interest of such person, but does not include:
(a) mortgage of the rights of land ownership, or
(b) a person to whom a holding has been transferred, or an estate or holding has been let in form, under the provisions of this Act, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear.
(c) a person who takes from Government a land of unoccupied land for the purpose of sub-letting it. Similarly 'tenancy' means a parcel of land held by a tenant under one set of condition and this has been defined under Section 4(27) of Land Revenue Act."
From the perusal of the record, it is clear that suit property in the column of ownership Central Government was shown, whereas in column of cultivation it was shown as Maqbooza Central Government, Din Muhammad Ghair Moroosi. The same was the position as regards to the land which is subject-matter of the connected Writ Petition No. 15284/2000, in which in ownership column it is entered as Central Government, and in the cultivation column the name of Naul Khan (respondent No. 4's father) has been entered a 'illegal occupant' in square No. 24, Killa No. 2/2/1-13, Rabi 1978 measuring 13 Marla as Khali, whereas 1 kanal is Banjar Qadeem. Regarding other Killas i.e. 8, 9 and 10 Central Government has been shown as owner and in cultivation column it has been shown as Maqbooza Central Government, Naul Khan Batai Behissa Nisfi. Muhammad Hussain, Nawazish Ali 'Najaiz Qabiz'.
From the foregoing narration of facts, the circumstances of the case, the evidence on the record, this Court has to consider that whether the respondents were in occupation of the suit land as tenant at the time of sale and so possessed better pre-emption right qua the petitioners. No doubt the first right of pre-emption in respect of the land comprising tenancy of a tenant was conferred under sub-para 3(d) of para 25 of the M.L.R. No. 115, but the above-stated clause prescribes three attributes of tenant; firstly that he shall hold land; that he shall hold it under another person/landlord, and thirdly, that he is liable to pay rent for the use and occupation of it to such a person. All these three attributes concur to create legal relationship of landlord and tenant. Seen from this angle, it can safely be said that the respondent in order to succeed was required to establish by unimpeachable evidence that he was in possession of the suit land at the time of sale and used to pay rent to the sellers. The learned Collector has relied on the statement of PW-2 and PW-3 Muhammad Sharif and Khushi Muhammad and Khasra Girdawaari Exh. P.2 and P.3.
Muhammad Sharif, Patwari, PW-2, according to the Collector, has stated that in accordance with Register Girdawari from Kharif Crop 1974 to Rabi 1978, square No. 22, Killa No. 7/8-0 in column of ownership Central Government has been shown, and square No. 24, Killa No. 2/2/1-13 in ownership column the entry is shown as Central Government and Kharif 1976 in cultivation column Din Muhammad has been shown as unauthorised cultivator. Similarly, square No. 78, Killa No. 5/5-15 up to Rabi 1977 in cultivation column the same has been shown as Banjar Qadeem. ExhP,2 and P.S show that Din Muhammad was unauthorised cultivator in 2 Kanals and 4 Marlas and remaining 5 Kanals and 16 Marlas was Banja- Qadeem. The Collector has misread the documents Exh. P.2, P.S and D.1. It has been ruled by the Hon'ble Supreme Court in case reported as Khushi Muhammad v.
Mst. Zakiya M/ s/itaq Ahmad and 7 others (1998 SCM R 253) and Muhammad Sharif v. Member (Judicial-ii), Board of Revenue, Punjab, Lahore, etc. (1998 SCM R 488) that unauthorised cultivators do not fall within the definition of Section 4(26) of the Land Revenue Act.
There is also abundant proof other fact that certain land preempted by the respondent was Banjar Qadeem. In this view of the matter, the respondent could have not been considered as tenant within the above definition of the tenant. See case of Sher Muhammad v. Ghulam, etc. (1989 SCM R 543).
From the above analysis it is clear that no evidence sufficient in quality and quantity was led by the respondent in order to prove that he was occupying the pre-empted land at the relevant time as tenant.
For what has been discussed above, this writ petition is allowed, the orders dated 13.1 1.1985 of respondent No. 3, dated 24.11.1987 of respondent No. 2 and order dated 30.5.2000 of respondent No. 1 are declared to have been passed without lawful authority and of no legal effect, which are set aside, In consequence of the same the suit find by respondent No. 4 shall stand dismissed with costs.