MIR ZAMAN Versus MUHAMMAD FEROZE

ORDER

1. MUHAMMAD AFZAL ZULLAH J. ‑‑Leave to appeal has been sought by a pre‑emptor against the dismissal of his Constitutional Petition by the Lahore High Court.

2. The petitioner had claimed the right of pre‑emption on the ground of tenancy. Vendee's plea was that the petitioner was not the tenant. His younger brother was in cultivating possession of the land, who had handed it over to the vendee on account of adjustment. The vendees' plea having been accepted by the Member Board of Revenue, the petitioner's Constitutional Petition having also been dismissed; leave to appeal is now sought.

3. Learned Counsel has reiterated the two arguments advanced before the High Court: One, that the petitioner was the tenant and not his brother; Two, that even if the petitioner had lost the possession on account of some illegal act of his brother and the vendee, the petitioner could still be treated as tenant. And that his failure to seek restoration of possession during the pendency of the suit could not, in law, deprive him of his status as a tenant.

4. The findings of fact regarding the 1st question whether the petitioner was in reality the tenant, are against him. They do not suffer from any such infirmity on account of which this Court should interfere; therefore, the 1st contention fails. That' being so, the petitioner cannot succeed having failed on the initial question of the existence of his claimed tenancy.

5. This petition, accordingly, would fail on this sole ground. The second question in the circumstances of this case though decided by the High Court, would not arise. It would, however, be decided in an appropriate case.

6. With the foregoing observation, leave to appeal is refused.

7. M.I. /M‑536/S Petition dismissed.