MUHAMMAD NAWAZ Versus MEMBER JUDICIAL, BOARD OF REVENUE, PUNJAB
MAULVI ANWARUL HAQ, J .---This writ petition was earlier heard and decided by this Court on 29-9-1999 and was allowed. This decision was made after proceeding ex parte against the respondents Nos. 4 to 6. C.A. No.1144-03 filed by the respondents Nos. 4 to 6 has been allowed by Hon'ble Supreme Court of Pakistan vide order, dated 15-11-2006. I deem it appropriate to reproduce here paras-1 and 2 of the said order:--
"(1) Learned counsel stated that the impugned judgment has been pronounced without providing opportunity of hearing to the appellants.
(2) On the other hand, learned counsel for the respondents contended that there are certain points which require reconsideration including the one, about status of Sikandar to whom appellants claimed to be the tenant. On this both the learned counsel agreed for the remand of the case to the learned High Court for disposal of the writ petition afresh on merits touching all the questions involved in the case after providing opportunity of hearing to all concerned. Order accordingly".
The matter has accordingly ?peen re-heard.
2. On 10-11-1979, the respondents Nos.4 to 6 (hereinafter to be referred to as the plaintiffs) filed a suit against the petitioners. It was stated in the plaint that Munir Ahmad, etc. vendors, detailed in para. 1 of the plaint, have sold the suit-land measuring 1175 kanals 15 marlas, described therein, to the petitioners by means of a Court decree, dated 10-10-1979 for a consideration of Rs.50,000 which is also market value of the land. They claim that the land is comprised in their tenancy. The petitioners while admitting that they purchased land by means of the said decree pleaded that they have paid Rs.500,000 as sale price of the land through agreements particularized in the written statement. They denied that the plaintiffs are non-occupancy tenants. According to them the land is being illegally occupied by one Sikandar and Khanan. I will be reproducing relevant paras of plant and the written statement in later part of my judgment. As many as 13 issues were framed. However, for the purposes of this writ petition it will suffice to reproduce here the following issue No.2 framed by the Collector, Bhakkar.
Evidence of the parties was recorded. Vide the judgment and decree, dated 23-9-1981, the Collector decreed the suit subject to deposit of Rs. 1,66,956.50. First appeal filed by the petitioners was dismissed by Addl. Commissioner (Revenue), Sargodha Division, Sargodha, on 25-4-1982. Revision filed by them was dismissed by Member (Judl), Board of Revenue, Punjab, Lahore on 20-2-1986.
3. Before I proceed further I may note here that the learned counsel for the parties have drawn my attention to the leave granting order, dated 2-6-2003 reported as "Muhammad Nawaz v. MBR and others (2004 SCMR 1384) as also a concise statement filed on behalf of the petitioners in the Hon'ble Supreme Court of Pakistan and thereafter have made their arguments. Ch. Khurshid Ahmad, Advocate, learned counsel for the petitioners argues that the pleadings as well as the evidence on record have been misread by respondents Nos. 1 to 3 while passing the impugned judgments and decrees. Even going by the revenue records relied upon by the plaintiffs, they have failed to prove that they were occupying the suit-land as non-occupancy tenants at the time of sale. According to him Sikandar was illegally occupying the land. There is no evidence on record that he was a lessee within the meaning of law, or in fact, under the vendors or the vendees/petitioners. He then reiterates his earlier arguments, noted by this Court while deciding the writ petition on 29-9-1999 i.e. a lessee is not a tenant and this being so the plaintiffs who claim to be sub-lessee are not non-occupancy tenants within the meaning of para. 25 of MLR 115. Sh. Naveed Shehryar, and Hafiz Khalil Ahmad, Advocates, learned counsel for the plaintiffs argue that a notification was issued by the Land Commission on 10-8-1973 clarifying that a tenant under lessee also is entitled to all the benefits conferred by para. 25 of MLR 115 and this includes first right of pre-emption in respect of sale of the land comprising in their tenancy. The precise argument is that notwithstanding the fact as to who is landlord or whether there be a landlord or not, any person who is tilling the land has superior right of pre-emption, if the land is sold. Also draw may attention to notification, dated 23-4-1973 to the effect that the word "Tenant" used in para. 25 of MLR 115 has the same meaning as defined in the Land Revenue Act, 1967 Section 4(26). According to them it stand proved on record that Sikandar was lawful lessee under vendors and the plaintiffs are his tenants. It is further argued that the amending Ordinance defining the term "Tenant" in Para. 25 of MLR 115 was promulgated in the year, 1982 whereas the suit was filed and decided by the first Court before the said point of time. The contention being that the provisions of said amending Ordinance of 1982 would not be having retrospective effect.
4. I have gone through the copies of the records appended with this writ petition with the assistance of the learned counsel for the parties. It may be noted that only the said issue pertaining to the superior right of pre-emption is being agitated before me. As noted by me above, I deem it appropriate to reproduce the relevant paras of the plaint and written statement hereunder:--
Para. 3(Alif) of the plaint is as follows --
Preliminary objection No.2 of the written statement is as follows:--
In reply to para. 3 (Alif) it was stated as follows:--
It will thus be seen that according to the pleading, the plaintiffs claimed to be non-occupancy tenants paying share produce to the vendors and then to the vendees/petitioners. While according to the written statement the said fact has been denied and it has been 'stated that they are not in possession rather the land is being illegally occupied by Sikandar and Khanan.
5. Muhammad Nawaz, respondent No.4 appeared as P.W.3. He made the following statement in his examination in chief:--
In this cross-examination, he stated without any demur that they have never paid any share produce to the petitioners/vendees.
6. The said evidence on a plain reading is absolutely inconsistent with the specific plea taken in the pleadings and as reproduced by me above. The Collector has answered the issue in favour of the plaintiffs on the basis of copies of sKhasra Girdarwari Exh.P.4 and P.5 while the Commissioner and the Member have followed the suit.
7. Before examining the said Khasra Girdawari, I may refer here to Exh.P.3, produced by the plaintiffs themselves. This is a copy of Register Haqdaran Zamin for the years, 1976-77, pertaining to the suit-land. The following persons are recorded as non-occupancy tenants paying half share of produce to the said vendors:---
1. Allah Ditta son of Muhammad Yar.
2. Bahadar son of Malka.
3. Pahna son of Jinda.
4. Pahna son of Muhammad Yar.
5. Haqnawaz son of Pahna.
6. Fateh Sher son of Naza.
Copy of this document was issued by the Patwari to the plaintiffs on 21-10-1980.
8. It will thus be seen that in the said document none of the plaintiffs is recorded as non-occupancy tenant under the vendors. Now coming to Exh.P.4 & 5, Exh.P.4 is Khasra Girdawari from Kharif 1978 to Rabi 1980. The decree was passed on 10-10-1979 with reference whereof the suit has been filed. In kharif 1978 as well as Rabi, 1979 the ownership as well as possession column is the same as narrated by me above with reference to Register Haqdaran Zamin Exh.P.3. It was in Kharif, 1979 that an entry was made on 29-10-1979 recording Allah Yar son of Faqira, plaintiff No.5 as non-occupancy tenant paying half share of produce under Sikandar son of Allah Ditta, a lessee for three years. This entry has been made against khasra Nos.182, 183 and 184, total measuring 230, kanals. Similar entry was made recording Noora, plaintiff/respondent in respect of Khasra No.206 measuring 70 kanals on 22-10-1979. With reference to a report, dated 2-3-1980, Noora, respondent was recorded as non-occupancy tenant on similar terms against khasra Nos.207, 208 and 212, total measuring 199, kanals 16 marlas. Muhammad Nawaz son of Malka was also entered as non-occupancy tenant on similar terms with reference to report, dated 2-3-1980 against khasra Nos.213 to 223, total measuring 675, kanals 19 marlas.
9. In kharif, 1980, a note was made of the said sale in favour of the petitioners and the entries continued. The said document was made the basis for decreeing the suit of the plaintiffs/respondents by the Collector and consequently the other official respondents. It would show that for the first time the plaintiffs were entered as tenants under said Sikandar son of Allah Ditta, a lessee for three years on 22-10-1979. The sale admittedly had taken place by means of said decree, dated 10-10-1979. The suit was filed on 10-11-1979. I, therefore, find that Allah Yar, plaintiff was entered as non-occupancy tenant under the said .lessee on 22-10-1979 i.e. after the date of said sale while Nawaz and Noora, respondents were entered as such on 2-3-1980 i.e. even after filing the suit. Needless to state that it is now well settled that an entry made in khasra girdawari is relatable to the date on which it is made. No presumption or assumption can be drawn or attached for period preceding and these cannot be related back. Reference be made to the judgment of Hon'ble Supreme Court of Pakistan in the case of "Khadam Hussain, and others v. Muhammad Nawaz Khan" 1981 SCMR 1183 with reference to case "Ghulam Hussain and others v. Sarfraz Khan and others" (PLD 1956 SC 309). The plaintiffs themselves have produced Register Haqdaran Zamin which enjoys presumption of correctness i.e. Exh.P.3. What to speak of producing said Sikandar, there is not an iota of evidence on record that the land was ever leased out to Sikandar for any period of time by the vendors. Oral evidence itself is totally inconsistent with the plaint. I, therefore, hold that there is no evidence on record that Allah Yar, respondent was a tenant at the time of date of sale and Noora and Muhammad Nawaz, respondents were tenant at the time of sale or at the time of filing of the suit.
10. I, therefore, reverse the findings recorded by the Collector, the appellate Court and the Court of revision on the said issue and do hold that the plaintiffs have failed to prove that the suit-land was comprised in their non-occupancy tenancy under vendors/vendees or under said Sikandar at the time of sale or the suit.
11. In view of the said findings recorded after reading the evidence on record, I do not feel necessity to decide other contentions as to the rights of persons occupying the land as non-occupancy tenants under the lessee. However, I do feel constrained to state that such a wide interpretation as is being suggested by Sh. Naveed Shehryar, Advocate, is not possible. Going by the said arguments of the learned counsel a person who is aware that the land is about to be sold has only to take over illegal possession, appoint some person as a tenant and that person will be filing a suit for possession by pre-emption. Besides I have already noted above that there is no evidence what-so-ever on record that Sikandar was a lessee, lawful or otherwise, of the suit-land under vendors. I have already noted above that Sikandar has not been produced and. no evidence has been led while one of the erstwhile owners has appeared as D.W.5 to state that the land was never leased out to Sikandar who was an illegal occupant.
12. Writ petition accordingly is allowed. All the three impugned judgments and decrees are declared to be without lawful authorities and set aside the suit filed by the plaintiff/respondents is dismissed. However, the parties are left to bear their own costs.
M.H./M-183/L Petition allowed.