GHULAM SARWAR and others vs CHANAN DIN (deceased) through Legal heirs and another
This matter concerns a petition for leave to appeal against a High Court judgment in a pre-emption suit. The core legal question was whether a tenant who inherits tenancy rights along with a sibling can defend a pre-emption suit against the entire suit land, or if their defense is restricted only to their specific half-share of the tenancy. The Supreme Court held that in the absence of a formal partition or specific allocation of land by the landlord, co-tenants are considered tenants over the entire property, akin to the principle of co-ownership where each co-sharer has an interest in every inch of the land. Consequently, the Court ruled that a tenant-vendee can defend a pre-emption suit on the basis of their co-tenancy over the entire land. The key principle laid down is that where co-tenants have not divided the land by metes and bounds, each tenant retains a tenancy interest in the whole property, allowing them to resist pre-emption claims over the entirety of the land.
- Can a co-tenant defend a pre-emption suit against the entire property if the land has not been partitioned?
- Does the inheritance of tenancy rights by multiple heirs restrict each heir's tenancy interest to a specific physical portion of the land?
- Is a co-tenant considered a tenant over the entire property in the absence of specific allocation by the landlord?
- Paragraph 25(3)(d), Martial Law Regulation 115
Sardar Muhammad Raza, J.--Ghulam Sarwar, a vendee in pre-emption suit, seeks leave to appeal against the judgment dated 30.11.2001 of a learned Judge in Chambers of Lahore High Court whereby half of the property sold has been decreed in favour of Chanan Din, the pre-emptor, now dead, his legal representatives impleaded.
2. The trial Court vide judgment dated 20.12.1980 had not suited the pre-emptor on the ground that Ghulam Sarwar vendee, being a tenant over the suit land, had a superior right of pre-emption. The learned Additional District Judge, while accepting the appeal decreed the whole suit vide judgment dated 15.6.1981, on payment of Rs, 50,000/- as pre-emption money. The learned High Court in regular second appeal, after remand by this Court, granted the pre-emptor a decree for half of the suit land holding that one Muhammad Akbar was a tenant over the suit land after whose death his two sons namely Ghulam Sarwar, the appellant and Muhammad Iqbal had inherited the tenancy in equal shares and thus Ghulam Sarwar could defend the pre-emption suit only to the extent of half share" comprised in his tenancy" as contemplated by para 25(3)(d) of Martial Law Regulation 115.
3. It is a proved fact that at the time of sale the two brothers aforesaid were tenanting the property as inherited from their father but in equal shares. Same is evident from the revenue record as well.
The question to be decided in the instant petition is as to whether the property comprised in the tenancy of Ghulam Sarwar is the entire property or only half of it.
4. Again, it is admitted that one Muhammad Akbar was a tenant on payment of half bhatai over the entire property. His tenancy is admittedly inherited by the two sons who are entered in the revenue record as tenants of the entire property subject, of course, to their individual share which is one-half. The words used in Para 25(3)(d) of MLR 115 are "comprised in tenancy" which, on the face of it, is referable to the piece of land physically possessed by a tenant, as such. The question in the instant case is as to what portion the two tenant brothers physically possess.
5. The record as well as evidence indicates that both the brothers are physically tenanting the entire property regardless of what share they command. They are throughout incorporated in record as co-tenants of the entire property with half share each. This scenario would attract the principle of ownership where each co-sharer is the owner of each and every inch of the property regardless of his specific share, which becomes relevant or material only at the time of partition. In the instant case as well, both the brothers would be considered tenants over the entire property.
Their half share each would become relevant or consequential only when either the landlord allocates that specific share to each of the tenants on the spot by meets and bounds or they themselves distribute the portions among themselves.
6. Both these eventualities have never occurred. Neither the landlord allotted them any specific portion nor they distributed it among themselves, on the principle of partition. We are of the view that each brother, by virtue of inheritance is a tenant over the entire property and that is the only conclusion that falls in consonance with the principle of cotenancy in line with the principle of co- sharership.
7. The matter can be viewed from still another angle; as to what would be the nature of tenancy after when Ghulam Sarwar, the tenant vendee succeeds. Obviously, after success, he will become the owner of the entire property while the other brother Muhammad Iqbal would never lose his tenancy rights and would remain a tenant over the entire property as inherited from his father. The learned High Court seems to have misconstrued the principle of co-tenancy particularly when no specific portion of suit land was possessed as tenant by any of the brothers. Unless, it was proved that the brothers had divided between themselves their portion of tenancy in accordance with their share, no one could be restricted to half portion in physical terms.
8. Consequent upon what has been discussed above, Civil Appeal No, 137 of 2002 filed by Ghulam Sarwar, tenant vendee, is accepted while Civil Appeal No, 1315 of 2002 filed by the pre-emptor is rejected, holding that one of the tenants can defend a pre-emption suit on the basis of his cotenancy over the entire land. The pre-emption suit is hereby dismissed and the judgment dated 20.12.1980 of the learned trial Court is restored.