MITHOO Versus MEMBER, BOARD OF REVENUE, PUNJAB, LAHORE

Facts stated at the Bar are that respondents Nos.3 to 7 purchased 64 Kanals and 8 Marlas of land out of a joint khata and the sales were incorporated in mutation Nos.33 and 34 dated 28‑3‑1981 and No.41 dated 31‑8‑1981. Petitioner brought a suit on 28‑12‑198i to pre‑empt these sales claiming superior right of pre‑emption on the ground of being a tenant of the lands sold. His precise claim was that he was in possession as a tenant of Khasra Nos.40/1 to 3, 9 and 44/1 to 5, 7/i. Petitioner had also purchased land measuring 48 Kanals and 8 Marlas out of the same joint Khata by means of three mutations No.31 dated 26‑3‑1981, No.35 dated 30‑6‑1981 and No.45 dated 15‑11‑1981. It appears that as a result of the sales made in his favour, petitioner was shown in Khasra Girdawari for Rabi 1982 in respect of the area in his possession as co‑owner in possession and not as a tenant. He, therefore, moved an application before the District Collector on 9‑8‑1982 for correction of the Khasra Girdawari contending that he was cultivating the Khasra numbers aforementioned as a tenant but he was wrongly shown as 'Hissadar in possession His plea was that he could be shown as co‑owner in possession to the extent of the area purchased by him but as regards the remaining area in his cultivating possession, he should have been recorded as a tenant. Collector dismissed the petitioners applicator. by order dated 14‑5‑1984 holding that as the suit for pre‑emption was pending between the parties, it was not advisable to make any correction. Petitioner preferred an appeal but without any success as the same was dismissed by the Commissioner vide order dated 27‑8‑1984. Learned Commissioner held that the petitioner having purchased a share in a joint Khata which he never got partitioned, "his request for showing him as owner in possession of specific Khasra numbers is unwarranted; more so in view of the pendency of the pre‑emption suit." Petitioner took the matter in revision but with no better result, Learned Member dismissed the revision petition vide order dated 27‑1‑1986, relevant portion of which is reproduced hereunder: ‑

"According to the copies of the record tendered by the parties and seen In the Court, the petitioner Mithoo is a joint owner in the Khata which he holds along with the respondents. On the field numbers which are in his possession he has been shown in the revenue record once in the Register Girdawari as a Hissadar in cultivation. Such entries being in accordance with the ground position and also according to the Land Records Manual cannot be altered at the option of the petitioner t show him as the tenant under the joint owners.

2. Petitioner has assailed the validity of the aforementioned order of the revenue authorities in the present constitutional petition.

3. I have heard the learned counsel for the petitioner as also the learned counsel appearing( for respondents Nos.3 to 7 at the limine stage. Learned counsel for the petitioner contends that the mere fact that the petitioner had purchased a part of the joint Khata does not mean that his possession over the remaining area in the Khata which he was cultivating as a tenant should be recorded a Hissadari possession. He submits that notwithstanding the fact that the petitioner became the co‑owner, he continued to be in possession of some other area as a tenant under the other co‑owners to who he has been paying Batai and, as such, he should have been enter in the revenue record as a tenant under co‑owners. Reference is mad to para 7.41 of the Land Records Manual relating to Cultivation Owners, clause (e) whereof relied upon by the learned counsel in reproduced hereunder:‑

(e) If a person cultivates certain Survey/ Khasra Nos. partly a co‑sharer (Hissadar) and also pays due rent of the same land to other co‑sharers, the entry should be as under:‑

"A co‑sharer himself '(Bazatehi) 1/3 (one‑third) and on behalf of B co‑sharer 2/3.(two‑third).

The afore-quoted entry/provision is of no help to the petitioner because it was never his case before the revenue authorities below that he has been paying 'Boatel to other co‑owners of the joint Khata This being a question of fact cannot be permitted to be agitated, for the first time, in writ proceedings.

4. Learned counsel for the petitioner has then cited two judgment of this Court reported in 1980 C L C 1012 and 1982 C' L C 64 to contend that a tenant having purchased the area of his tenancy does not thereby lose the status of a tenant. I have gone through these cases. They proceed or. their on facts. In both the cases, land dispute was purchased by the tenants thereof and suits for pre‑emption were brought by the collateral s of the vendor. It was held by this Court that the tenants (vendees) could successfully resist the suit for pre‑emption brought against them as they themselves had the first right of pre‑emption conferred on them under clause (d) of sub‑paragraph (3) of para. 25 of the Land Reforms Regulation (ML 115), 1972.

Learned counsel for the respondents, on the other hand, has referred to a judgment by a Division Bench of the Karachi High Court reported in 1983 C L C 930‑ In this case, a tenant who he himself purchased 0.36 paisas share in a survey number had brought a suit in exercise of his right of pre‑emotion under para. 25 of ML 115 to pre‑empt the sale of remaining 0.64 paisas share in favour some other persons. It was, inter alia, held that the tenant having become Zamindar, "he lost his right of pre‑emption in respect of to remaining area."

6. Having considered the submissions made by the learned counsel for the parties and the case‑law cited by them, I am of the view that a tenant of a joint Khata after he purchases a share thereof becomes a co-owner therein. That being so, the petitioner after he had purchased a part of the joint holding was rightly shown as a unexceptionable.

7. Upshot of the above discussion is that there is no merit in this petition which is dismissed in limine.

A.A./M-618/L Petition Dismissed.