ABDUL HAYEE Versus WAHID BAKHSH
This revision petition under section 115, C.P.C. has been filed to call in question the judgment and decree, dated 26‑2‑1983, passed by Additional District Judge, Multan whereby, the judgment and decree, dated 22‑2‑1981, passed by Civil Judge, Lodhran was set aside and the suit of the pre‑emptor/plaintiff/petitioner was dismissed.
2. Facts giving rise to the present revision petition are that Abdul Salam, father of Abdul Hayee, present petitioner had sold his agricultural land measuring 23 Kanals, 2 Marlas situated in village Kotla Rajwah Tehsil and District Lodhran in favour of Wahid Bakhsh, the respondent herein, for a consideration of Rs.22,000. The sale was effected through a registered sale‑deed, dated 1‑11‑1977.
3. The above said sale was pre‑empted by Atta Elahi and Muhammad Yousuf on the ground that they are owners of the estate wherein the suit‑land is situated. Abdul Hayee, present petitioner, had also filed a separate pre emption suit to pre‑empt the said sale claiming to be the collateral/Yak Jaddi/prospective heir of the respondent/real son of the vendor. Both the pre emptors alleged that the vendors are strangers in the village. The vendee/respondent filed his separate written statement in both the suits denying the averments of the pleadings and the superior right of pre‑emption of the pre‑emptors claiming to be the tenants of the suit‑land. From the factual controversy appearing on the pleadings of the parties the trial Court led to frame the various issues.
4. After recording and appreciating the evidence of the parties, the trial Court decreed the suit of the plaintiff‑Abdul Hayee. Both the suits of the pre emptors were decreed. Feeling aggrieved Wahid Bakhsh vendee filed two separate appeals and the appellate Court vide consolidated judgment and decree, dated 26‑2‑1983 accepted both the appeals and set aside the impugned judgment and decree passed by the trial Court and dismissed both the suits filed by the rival pre‑emptors.
5. Learned counsel for the petitioner contended that Abdul Salam vendor of the property previously had mortgaged his property vide Mutation No.292, dated 3‑10‑1976 in favour of the vendee/respondents and thereafter he sold the property vide sale‑deed, dated 1‑11‑1977. He further contended that till 3‑10‑1976 to 1‑11‑1977 the vendee Wahid Bakhsh was a mortgagee of the land and seized to be tenant of the property. He further contended that the factum of mortgage of the property is admitted by the parties in the sale‑deed, wherein it has been mentioned that from today i.e. sale of the property shall be deemed to have been redeemed. He further contended that in record of rights of the property in dispute a note with red ink is given by the Patwari to the effect that the property is mortgaged with the vendee. He further contended that the appellate Court has biased his judgment, misread the documentary as well as the oral evidence produced by the petitioner and thus, the judgment of the appellate Court suffers from illegality and infirmity.
6. On the other hand, learned counsel for the respondent vehemently opposed the argument of learned counsel for the petitioner and supported the judgment of the Lower Appellate Court by contending that the property was redeemed on 1‑11‑1977 when the sale in dispute was executed in writing and that the mortgagee is also a tenant of the land. He further contended that the mortgagee of land would not discontinue the tenancy in any manner and after the redemption of the mortgage he would continue to hold his status as a tenant of the suit‑land.
7. I have heard the arguments of learned counsel for the parties and perused the record.
8. The case of the vendee is that he has a superior right of pre‑emption qua the plaintiff being the tenant of the land. The definition of the tenant has been defined under section 4 subsection (5) of the Punjab Tenancy Act which contemplated that:‑‑
"'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 inferior landowner, or
(b) a mortgagee of the rights of a landowner, or
(c) a person to whom a holding has been let in farm under the Punjab Land Revenue Act, 1887, for the recovery of an arrear or land revenue or of a sum recoverable as such as an arrear, or
(d) a person who takes from the Government a lease of unoccupied land for the purpose of sub‑letting it. "
Subsection (8) of section 4 of the Tenancy Act has further provided that:-----
"'Tenancy' means a parcel of land held by tenant of a landlord under one lease or one set of conditions."
9. From the plain reading of the above provisions of law it is clear that it is an essential condition for a tenant to pay rent for that land to other person whose land he holds on tenancy and the tenancy a parcel of land held by a tenant under landlord in one lease or on one set of condition. It would mean that the tenancy can only continue if there are some set of conditions between the tenant and the landlord. Most important condition of the tenancy and the liability of the tenant is to pay rent of that land meaning thereby, the share of the crops or output to the landlord. If there is no payment of rent or lease money to the landlord, then the relationship of landlord and tenant would not exist between the parties. A mortgagee of the rights of a land owner is not recognized as a tenant under section 4 subsection (5)(b) of the Punjab Tenancy Act. A mortgage has been defined under section 58 of the Transfer of Property Act which envisaged that:‑‑---
"A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a. mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage money and the instrument (if any) by which the transfer is effected is called a mortgage‑deed:"
10. The mortgagee has to make the payment to the mortgagor in advance or to be advanced by way of loan, an existing or future debt. The mortgagee is not to pay the share to the landlord of the crops sown by him. It is the payment of the share or batai is the liabilities of the tenant only. From the above discussion it is manifestly revealed that a mortgagee is not to inherited in the definition of the tenant.
11. In the instant case the sale‑deed has been produced in evidence as Annexures P.2 and D.1 wherein it is stated as under:‑‑
It is further stated in the sale‑deed that:‑‑
12. The abovementioned facts in the sale‑deed have established that the property was already mortgaged with the vendee which was deemed to have been redeemed on the date of execution of‑the sale‑deed i.e. 1‑11‑1977.. It is an admitted position which need not to be proved that the property was mortgaged with the vendee prior to the execution of the sale‑deed. In the Column No. 10 of the record‑of‑rights for the year 1974‑75, a note with the red ink was given by the Patwari, which shows that vide Mutation No.494 the property had been mortgaged. The said entry in the Khasra Girdawari for the crops of Rabi, 1977 and Kharif 1977 was written with the red ink by the Patwari that Wahid Bakhsh son of Elahi Bakhsh caste Dhudhi is mortgagee of the suit property. The mutation under the sale‑deed in dispute has also been sanctioned but before the sanctioning of this mutation another mutation for redemption of the property was attested. The first appellate Court has not adverted to the above referred aspect of the case and thus, the judgment has been passed by the appellate Court by misreading or non‑reading of the most important documentary evidence produced by the petitioner which is sufficient to prejudice the fate of the case. Learned counsel for the respondent has not been able to controvert the legal proposition that the mortgagee is not inherited in the definition of a tenant as enumerated in section 4 subsection (5) of the Punjab Tenancy Act. The vendee who contested the superior right of the pre‑emptor has to prove his superior or equal right at the time of sale, at the time of institution of the suit and at the time of decree of the suit. The plaintiff‑petitioner Abdul Hayee has established his superior right as son of the vendor Abdul Salam continuously at three different stages as required by law. The judgment of the appellate Court suffered from illegalities and infirmities, therefore, cannot sustain in law.
13. For the foregoing reasons this revision petition is accepted. Resultantly the judgment and decree, dated 26‑2‑1983 passed by the Additional District Judge, Multan is set aside and judgment and decree l passed by the trial Court 22‑2‑1981 is restored and the suit of Abdul Hayee plaintiff‑petitioner is decreed. He will deposit the total sale amount of Rs.22,000 less Zar‑e‑Panjum if already not deposited or if deposited not withdrawn till 16‑12‑2000 from the date of passing of this judgment. There shall be no order as to costs.
Q. M. H. /M. A. K./A‑160/L Revision allowed.