JUDGMENT ABDUL SHAKOOR PARACHA, J.-- Nazar Muhammad, predecessor-in-interest of the petitioners, and Allah Ditta respondent No. 2, entered into a transaction of exchange vide registered exchange deed dated 18.11.1976 regarding land measuring 39 Kanals, 11 Marlas owned by Allah Ditta which was exchanged with land measuring 19 Kanals, 18 Marlas of Nazar Muhammad. The aforesaid transaction was pre-empted by Muhammad Afzal, respondent No. 1 (since dead and his legal representatives have been brought on record) on the basis of superior right of pre-emption as tenant under para 25 of the Land Reforms Regulations, 1972 (MLR 115) before the Collector, It was also alleged that the transaction was in fact a sale and not an exchange. The device was coined to name the transaction as exchange to deprive the respondent of his superior pre-emptive right.
2. The suit was contested, It was asserted that the land in dispute was under lease to the respondents' predecessor namely Muhammad Afzal and the suit is not maintainable on the basis of tenancy.
3. From the divergent pleadings of the parties, issues were framed by the learned Trial Court (Collector, Wazirabad), evidence was recorded and the learned Collector decreed the suit to the extent of 22 Kanal, 16 Marla vide decree dated 21.2.1979. The appeal find thereagainst by the petitioner was dismissed by the learned Additional Commissioner (Rev.), Lahore Division on 8.2.1981, and the petitioner was also unsuccessful before the Board of Revenue as his civil revision was dismissed op 29.5.1994.
4. The learned counsel for the petitioners contends that all the lower forums are in error of jurisdiction, in not even attending to the plea of the petitioners that the land in dispute was under lease and the lessee could not be treated either as an owner or as a tenant. Further contends that the suit of the respondent's predecessor Muhammad Afzal on the basis of the tenancy under para 25 of the Land Reforms Regulations, 1972 (MLR 115) was not maintainable as the respondent does not fall within the definition of tenant as contemplated in Section 4(26) of the Land Revenue Act.
Reliance has been placed on Bakhtawar Shah and others v. Member, Board of Revenue and others (1985 SC MR 348), Faqir Muhammad and others v. Muhammad Rafique and others (1986 CLC 1028) and Abdu! Rauf Khan v. Muhammad Hanif (^990 ALD 690(1)).
5. On the other hand, the learned counsel for the respondents on the strength of case reported as Muhammad Yousaf v. Province of Punjab through Collector, Lyallpur (PLR 1976 Lah. 328) argued that the lessee who is in cultivation of the land himself falls within the definition of the 'tenant'; and can seek a decree for possession on the basis of pre-emption under para 25 of MLR-115. Further contends that all the competent forums of jurisdiction have recorded a finding of fact in favour of the respondent which cannot be interfered with in writ jurisdiction by this Court.
6. The right of pre-emption was conferred on the tenants for the first time in para 25 of the Land.
Reforms Regulation, 1972 (NLR 115). The term 'tenant' has not been defined in the Land Reforms Regulation, 1972 (MLR 1-15). The said term 'tenant' has been defined in Section 2(26) of the Land Revenue Act, 1967 as under:- "(26) 'tenant' means a person who hold 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 pro-visions of this Act, for the recovery of an arrears of land revenue of a sum recoverable as such an arrear;
(c) a person who takes from Government a lease of unoccupied land for the purpose of subletting it."'
The word 'tenant' is also defined in Section 4 sub-section (5) of the Punjab Tenancy Act, 1887 as follows:- "(5) 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 that land to that other person; but it does not include:-
(a) an interior land-owner; or
(b) a mortgagee of the rights of a land-owner, or
(c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887, for the recovery of an arrear of land revenue or of a such an arrear, or
(d) a person takes from the Government a lease of unoccupied land for the purpose of subletting it."
Thereafter Ordinance No. V of 1982 was promulgated when a new clause (13) was added in Para-2 of the Land Reforms Regulation, 1972, which reads as follows:- "(13) '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 that land to that other person and includes the predecessors and successors-in- interest of such person, but does not include:-
(a) --------------
(b) -------------- (c)----------------
(d) a lessee, whether cultivating the land himself or through another person."
7. The case of the petitioners-defendants was that the land in possession of the petitioner was on lease under one Mst. Rashida Begum. Khasra Girdwari Exh. P.5 is on the file, It clearly indicates that Muhammad Afzal son of Muhammad Sharif is in possession of the land being lessee under Rashida Begum.
It is true that in case of Muhammad Yousaf (PLD 1976 Lah. 328) (supra) it was held by the learned Judge of this Court that a lessee, who-cultivates the land himself, would also be regarded as a tenant for the purpose of para 25 of the said Regulation, but, as indicated in the case of Muhammad Ashraf v. Member, Board of Revenue Punjab, Lahore etc. (1984 CLC 2950), the view taken in the case of Muhammad Yousaf was dissented from by a learned Single Judge of this Court, in which it was ruled that the tenant contemplated in para 25 did not include a lessee. Same opinion was expressed by the Hon'ble Supreme Court of Pakistan in case of Abaad AH and others v.
Muhammad Din (1981 SCMR 742) and observed:- "Muhammad Din's case is that he is a tenant and is, therefore,. Entitled to pre-empt the sale under the provisions of Martial Law Regulation No. 115. A learned Single Judge of the High Court came to the conclusion that the present petitioners were able to prove by oral evidence only that they were lessees in respect of the fruit of the garden. Under Martial Law Regulation No. 115 the definition of the term 'tenant' appearing in the West Pakistan Land Revenue Act has been adopted. This is an admitted position. The liability to pay rent is the main condition for becoming a tenant. No evidence was led in the present case to show that there was any liability to pay the rent. There was, therefore, no proof that the petitioners were the tenants. Not being tenant as visualized by the Martial Law Regulation No. 115 they cannot take advantage of its provisions which give the right of pre-emption to a tenant."
In case of Faqir Muhammad and others v. Muhammad Rafique and others (1986 CLC 1028) the distinction has been brought in the expressions 'tenant' and 'lease-holder' and it has been ruled that:- "Lease-holder of land has right altogether different from those of tenant--Lease-holder in fact stands in shoes of owner and even is liable for Government dues regarding land while tenant is not--'Lessee' would remain a 'lessee' and would not be covered by definition of 'tenant' whether he cultivated land himself or employed other persons as tenants for purpose of cultivation."
In case reported as Jalia v. Abdu! Hayee (PLD 1988 Lah. 234) while interpreting para 25 of the Land Reforms Regulation, 1972 (MLR 115) it was ruled that 'lessee' is not entitled to claim benefit of para 25 of Regulation 1972- and thus could not claim first right of pre-emption.
In case reported as Abdu! Rauf Khan v. Muhammad Hanif (1990 ALD 690(1)), the provisions of Land Reforms Regulation, 1972 (MLR 115) alongwith para 25 as amended by Land Reforms Regulation (Punjab Amendment) Ordinance (V of 1982) was interpreted and it was ruled that the lessees having specifically been excluded from definition of tenant, could not claim any right of pre- emption and it was also ruled that the amending Ordinance (V of 1982) of the Land Reforms Regulation, 1972 (MLR 115) was retrospective in nature and all amendments which are declaratory and clarification in character, are to be construed as retrospective.
In view of the above discussion, this writ petition is allowed.
The decree granted to the predecessor of the respondents, namely, Muhammad Afzal. By the Revenue Authority is declared to be of no legal effect. There shall be no order as to costs.