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Constitutional Petition No. 347 of 1976, heard on 21st October 1976.

Paras. 4(8) & 25(3)(4) read with Sind Land Commission (Pre emption) Rules, 1974, Sind Tenancy Act (XX of 1950), Ss. 2(2), 4 & 5 and West Pakistan Land Revenue Act (XVII of 1967), S. 4(22), (20) Words "tenant" and "permanent tenant" in Regulation and Acts of 1950 and 1967‑Meaning‑Right of pre‑emption in respect of land Connotation of word "tenant" under M. L. R. 115 different from that under Sind Tenancy Act‑Petitioner, held, can only succeed in claiming right of pre‑emption if he establishes that he was a "tenant" of disputed land at time of its sale [Words and phrases].

Samiuddin Sami for Petitioner.

Abdul Hafeez Lakho, Additional A.‑G. for Respondent No. 1.

Maroof Ali for Respondent No. 2.

Date of hearing : 21st October 1976.

.‑By this petition, the petitioner, who claims to be a haris, assails the orders of the Revenue authorities rejecting his claim for preemption in respect of Survey No. 314/1 of Deh Khat Lashkar Khan, Taluka Khairpur Nathan Shah, District Dadu.

2. The claim of the petitioner is that the above survey number has been cultivated by haris of three generations of the petitioner. The said survey number originally belonged to one Teckchand, but later on it was declared to be evacuee property and was settled on one Abrar Hussain. a claimant. The said Abrar Hussain sold the survey number in question to respondent No. 2 on 30‑9‑1974, and an entry to that effect was made in the Record‑of‑Rights. The petitioner submitted an application to the Mukhtiarkar and the Tribunal (constituted under the Sind Tenancy Act, 1950), Khairpur Nathan Shah, claiming right of pre‑emption in respect of the said survey number on the ground of his being a hari of the said number. His claim, however, was rejected by the Mukhtiarkar and the Tribunal on the grounds, firstly, that the petitioner was shown in the Record of hariship to have been the hail of this survey number only in the years 1964‑65, 1965‑66. 1968‑69 and in 1974‑75, which showed that he was not a regular hail of the said survey number ; secondly, that the petitioner owned more than 40 acres of land in his khata, which showed that he belonged to the Zamindari class ; and lastly, that from the petitioner's personal appearance it did not appear that he was a Karl. The petitioner filed an appeal before the Assistant Commissioner, and on its dismissal, a revision application to the Deputy Commissioner, Dadu, but the same was dismissed by the latter Officer, vide his order dated 6‑4‑1976. The Assistant Commissioner dismissed the appeal on the grounds that the petitioner belonged to the Zamindari class and further that he was not shown as the hart of the survey number in question from the year 1969‑70 to Rabi 1974‑75. On this view of the matter, he came to the conclusion that the petitioner was not the permanent Hari of the disputed survey number as required under section 4 of the Sind Tenancy Act, and was, therefore, not entitled to right of pre‑emption in respect 'of the survey number in question. The Deputy Commissioner in revision also has held that the petitioner does not belong to the hari class as he owns agricultural lands to the extent of 30 acres and that further the petitioner became a Hart of the survey number in question from Rabi 1974‑75, after the registration of the sale deed in respect of the survey number in favour of respondent No. 2. It may be mentioned that the sale deed in respect of the survey number was registered in September, 1974.

3. It was submitted by Mr. Samiuddin Sami, the learned counsel for the petitioner, that the Revenue authorities have, against the weight of unimpeachable evidence, wrongly held that the petitioner was not the Hurl of the survey number in question. Additionally, he contended that the Revenue authorities were further in error in dealing with the petitioner's claim for pre‑emption under the Sind Tenancy Act, 1950, and requiring the petitioner to establish that he was a permanent Hari of the Survey number in question, whereas the petitioner's claim should have been dealt with under paragraph 25(3)(4) of M. L. R. 115 read with the Sind Land Commission's Notification No. SLC‑2724/72/4804, dated 22‑8‑1973.

4. The question whether, for the purposes of enforcing his right to pre‑emption in respect of any land, the person enforcing the claim has to be a "tenant" or a "permanent tenant" as defined in the Sind Tenancy Act, or he has to be a "tenant" for the purposes of M. L. R. 115 is of considerable importance, because as will presently be shown, the connotation 't of the word "tenant" under the two laws is different. Section 2(2) of the Sind Tenancy Act, 1950, defines "tenant" (Hari) as "a person who personally cultivates the land of another person hereinafter called a "Landlord" but does not include a person who takes from the Government a lease of unoccupied land. Under section 4 of the said Act, a permanent tenant has been defined as under :‑:

"4. A tenant shall be deemed to be a permanent tenant if at the commencement of this Act‑

(i) he has annually cultivated a survey number or at least four acres of land for the same landlord for a continuous period of not less than three years ; and

(ii) he has cultivated such land personally during the aforesaid period Provided that the provisions of this section shall not apply in case of‑

(a) land purchased from the Government on instalment system, until all the instalments thereof have been fully paid,

(b) land taken on lease from the Government:

Provided further that the area under watercourses and boundary strips shall be counted as cultivated for the purpose of the four‑acre limit."

5. Subsection (1) of section 5 of the said Act provides that if a tenant has personally cultivated the same piece or parcel of land for the qualifying period prescribed in section 4, he shall be deemed to be permanent tenant in respect of that land.

6. The petitioner, however, was not enforcing any right under the Sind Tenancy Act, 1950. He was claiming a right of pre‑emption under

paragraph 25 (3) (d) of M. L. R. 115, which reads as under : ‑

"(3) As from Kharif 1972‑

(d) subject to other provisions of this Regulation, a tenant shall have the first right of pre‑emption in respect of the land comprised in his tenancy.

7. The Sind Land Commissioner , in exercise of the powers conferred on it under M: L. R. 115, has flamed the Sind Laud Commission (Pre‑emption) Rules, 1974. Paragraph 2 of the said Rules provides that, subject to the context, .the words used in the said Rules shall have the meaning assigned to them in the Land Reforms Regulations, 1972, and the Sind 'Tenancy Act, 1950. Since the words "tenant" and "tenancy" have not been defined in M. L. R. 115, the said words, as used in the aforesaid Rules, would ordinarily have acquired the meaning assigned to them in the Sind Tenancy Act, 1950. However the Sind Land Commission, in exercise of the powers conferred on it by sub‑paragraph (8) of paragraph 4 of M. L. R. 115, issued a Notification on 22‑8‑1973, with the approval of the President, to the effect that the words "tenant" and "Revenue Courts" used in paragraph 25 of the said Regulation shall have the same meaning as assigned. to these words in clauses (26) and (22) of section 4 of the West Pakistan Land Revenue Act, 1 &67. We have, therefore, to refer to the definition of the word "tenant" as contained in the Guest Pakistan Land Revenue Act, 1967. Clause (26) of section 4 of the said Act rends as under :‑

"(26) '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, and includes the predecessors and successors‑in‑interest of such person, but does not include‑‑

(a) mortgagee of the rights of a land‑owner ; or

(b) a person to whom a holding has been transferred, or an estate or holding ties been let in faun, under the provisions of this Act, for the recovery of an arrear of land‑revenue or of a sum recoverable as such an arrear ; or

(c) a person who takes from Government a lease of unoccupied land for the purpose of subletting it."

8. The above definition of the word "tenant" only requires a person to hold land under another person and to be liable to pay rent for that land (except in cases of special contract) to be deemed a tenant for the purposes of the said Act. It does not rewire that a person should cultivate the land personally, its in the case o a tenant under the Sind Tenancy Act, 1950, nor does it require that the person concerned should have cultivated the land for specified number of years. It also does not exclude a person from being a tenant who owns land in his own name. The approach thus of both the Mukhtiarkar as well as the Assistant Com missioner in taking into consideration the factors that the petitioner owns land and that he was not a permanent Hari of the survey number in question was thus misconceived. However, this does not mean that the orders of the Revenue Authorities are wrong and Have to be set aside. The petitioner can only succeed if he is able to establish that he was a tenant, as the term is defined iii the West Pakistan Land Revenue Act, 1967, in respect of the survey number in question, at the time that it was sold to respondent No. 2, for the right to pre‑emption would arise at the time of sale. ''

9. It appears from, the orders of the Assistant Commissioner and the Deputy Commissioner that the sale deed in respect of, the survey number in question in favour, of respondent No. 2 was registered on 30‑9‑1974. This date according to us was the crucial date on which the right to preemption arose. However, it is clear Gm the orders of the Assistant Commissioner and the Deputy commissioner that the petitioner was not a hari of the survey number on the said date. In support of his contention that the Petitioner was a hari on that date, Mr. Samiuddin Sami referred us true copies of Khasra Girdwari relating to the survey number in question for the years 1964‑65 to 1975‑76. They show, firstly, that throughout this period the survey number was not cultivated during Kharif season, except in the year 1970‑71, when Jwar cultivation was raised thereon, and secondly, that the petitioner was hari of the survey number in question during the years 1964‑65, 1965‑66, 19615‑69, 1974‑75 and Rabi 1975‑76. The Rabi season, however, starts from 15th October, and therefore, the fact that the petitioner was hari of the survey number during Rabi 1974 is of no help to him. Faced with this situation, Mr. Samiuddin Sami contended, firstly, that during the years 1972‑73 and 1973‑74, petitioner's son Kaural Sario, was the hari of the survey number on his behalf, since he had proceeded for, Haj, and was, away, for two years, and that, secondly, since the survey number remained uncultivated for the Kharif seasons, the petitioner, by reason of his being hari for the year 1974‑75, should 6 deemed to have been the hart of the survey number during the Kharif season of 1974 also. We, however find no substance in these contentions, the first contention of Mr. Samiuddin Sami would have had substance if the petitioner had been the hart of the survey number in question immedia tely before his son became hari of that survey number and resumed the hariship from his son on returning from Haj or alternatively his son was shown to be a minor and, therefore the real hari would be deemed to be the petitioner. The position, however, is that immediately prior to 1972‑73. When petitioner's son Kaural Sario became Hari of the survey number, one Yunus Lodhi was the, hari of the survey number for the years, 1970‑71 and 1971‑72. Furthermore, there is no evidence on record to sow that during the two years that petitioner's, son Kaural, was the hari of the survey number, be was a minor. We have been shown a certificate from the Board of Intermediate and Secondary Education, Hydrabad, Sind, on which the photograph of petitioner's son, Kaural, has been affixed. From the photograph we find that Kaural is a grown up person with luxurious moustaches. He appears to us to be about 22 to 24 years of age. In. the circumstances, it is quite probable that Kaural became hari of the survey number in question in his own right arid not on behalf of the petitioner. The mere fact that Kaural at about that time was also pursuing his studies would not have acted as a hindrance in, his performing the functions of a hari, for it appears that he has taken quite some time to pass even his Matriculation Examination. The fact that he appeared as an external candidate in the said examination further seems to confirm the fact that he was engaged in other pursuits, besides his studies.

10. The fact, that the survey number in question has practically always remarried fallow during the Kharif season would also not make the petitioner its hart during the crucial Khurif season of 1974, when the sale deed in respect of that survey number was executed in favour of respondent No. 2. If the petitioner had been the huri of the land during the Rabi season of 1973‑74 and again for the Rabi season of 1914‑75, this argument would no doubt have had substance. However, as already shown, during the year 1973‑74, it was petitioner's son, Kaural, who was the hart of the survey ; number, not on behalf of the petitioner, as claimed by the latter, but, in, our view, in his own right. No fault thus can be found with the orders of the Assistant Commissioner and the Deputy Commissioner, who have held that the petitioner was not the hari of the survey number in question at the time when the sale deed in respect of the survey number was registered and was accordingly not entitled to right of pre‑emption.

11. In the result, we are of the opinion that there is no merit in this petition. We accordingly dismiss the same with costs.

S. Q. Petition dismissed.

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