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Constitutional Petition No. 102 of 1981, decided on 6th March, 1983.

‑‑‑Para. 25 (d)‑Right of pre‑emption ‑Harts‑Tenant purchas ing a portion of property and raising no objection to sale of remaining portion made to petitioner on same date and same rate‑Tenant after having become Zamindar, held, lost his right of ,pre‑emption in respect of remaining area sold to petitioner. [Pre‑emption).

‑ Para. 25 (d)‑Right of pre‑emption ‑ Waiver ‑ Handwriting expert holding that affidavit allegedly deposed by respon dent giving up his right of pre‑emption not bearing his thumb mark‑Revenue Authorities concurrently holding in favour of res pondent‑High Court not disturbed concurrent finding in constitu tion petition‑Provisional constitution Order (1 of 1981), Art. 9.

‑‑ Para 25 (d)‑Right of pre‑emption‑Application, maintain ability of‑Size of area sold to two groups of vendees as well as price to be paid by each group ascertainable‑Objection to maintainability of application for right of pre‑emption on ground that sale indivisible, held, not sustainable. ‑ [Per‑emption].

Muhammad Khan v. Abdul Khaliq Khan P L D 1981 S C 155 rel.

‑‑ Para. 25 (d) ‑ Right of pre‑emption ‑ Tenancy ‑ Area sold not included in tenancy of pre‑emptor and no right of pre emption available to him‑Contention that he had to exercise his right of pre‑emption or that his failure to do so would affect his case relating to area sold to petitioners, held, cannot be sustained.‑[Pre emption].

‑‑ R. 7 (2)‑Determination of sale price‑Harts not alleging before Deputy Commissioner that sale price was fraudulently inflated nor had they made a specific prayer for determination of sale price‑ Deputy Commissioner, held, not justified to determine price‑Harts prepared to pay price which petitioners paid to original owner of land‑Price fixed by Tribunal substituted accordingly‑Provisional Constitution Order (1 of 1981). Art. 9.

Maroof Ali Khan and Paryram for Petitioners.

Farman Ali and Abdul Fatteh Malik for Respondents.

Date of hearing : 6th March 1983.

By this constitution petition the petitioners, have impugned three orders dated 23rd July 1977, 20th September, 1977 and 26th August 1980 passed by the Deputy Commissioner, Sukkur, Commissioner Sukkur and Senior Member Board of Revenue respectively. These orders were passed in the circumstances which are briefly stated as follows: The agricul tural land bearing S. No. 51 in deh : Sam Dino Malik Taluka Ubauro District Sukkur, of which the respondents Ghulam Mohammad and Dodo were harts, originally belonged to respondent Jamaluddin. It is stated that Jamaluddin sold 0‑64 paisa share of the said S. No. to the petitioners and the remaining 0‑36 paisa to respondent Dodo and one Allah Rakhio at the rate of Rs. 8,000 per acre allegedly with the consent of the said haris. However after about 10 months from the said transaction the respondents Ghulam Mohammad and Dodo made joint application to the respondent No. 3 challenging the sale of the land to the petitioners in exercise of their right of pre‑emption under M. L. R. 115.

The application was opposed by the petitioners mainly on the ground that the respondent Ghulam Muhammad had given up his right through an affidavit he had sworn on 6th June, 1976 and further that he could not exercise his right of pre‑emption only in respect of the portion of the land sold to the petitioners leaving out the remaining portion sold to Dodo and Allah Rakhio. It was further averred by the petitioners that respondent Dodo lost his right by purchasing 0‑36 paisa share from the said S. No. and thereby having become Zamindar himself.

3. As the respondent Ghulam Muhammad denied ' having sworn the affidavit relied upon by the petitioners, the Deputy Commissioner referred the said affidavit alongwith thumb impression of the respon dent Ghulam Mohammad to the handwriting expert and on receipt of his report which was to the effect that the affidavit did not bear his thumb impression, he allowed the application with direction that Mukhtiar kar Ubauro would determine the price to be paid by the respondent s horts on the basis of average sale price for two years. Dissatisfied by this order, the petitioners preferred appeal to the Commissioner, but the same was dismissed. The revision filed by them against the order of the Commissioner before the Board of Revenue also failed. Thereafter the petitioners have filed this petition.

4. In support of the petition the learned counsel for the petitioners reiterated the grounds on which the 'application of the respondents‑heris' before the Deputy Commissioner had been resisted. It is not denied that 'respondent Dodo has purchased 0‑36 paisa share of the S. No. in question jointly with Allah Rakhio. There is no indication to show that' he had raised any objection to the sale of the remaining 0‑64 paisa share to the petitioners which had taken place on the same date i.e. 8th June 1976' and at the same rate. Moreover after having become Zamindar he lost his light of pre‑emption in respect of the remaining area. Accordingly we agree with the learned counsel for the peti tioners that so far respondent Dodo is concerned, he had no right of pre emption in respect of the area which has been sold to the petitioners.

5. However the case of the respondent Ghulam Mohammad stands on different footing. All the three Revenue authorities mentioned above have given concurrent findings in his favour. They have relied on the report of the handwriting expert holding that the affidavit by which had allegedly given up his right does not bear his thumb mark see no reason to disturb the concurrent findings in this regard. Thus respondent Ghulam Mohammad cannot be held to have waived his right of pre‑emption.

6. It was further contended by the learned counsel for the petitioners that the sale to two groups of vendees, one comprising the petitioners and the other consisting of respondents Dodo and Allah Rakhio being one indivisible sale, the application for pre‑emption was not maintainable only in respect of one group namely the petitioners. In this connection the learned counsel placed reliance on Mohammad Khan v. Abdul Khaliq Khan (P L D 1981 S C 155). In this case reference was made to the case of Abdullah and 3 others v. Abdul Karim and others (P L D 1968 S C 140) wherein it was held: ‑

"that to find out whether a sale is divisible the Court is to see two things via. (i) Whether the share of each vendee is specified and (ii) Whether the proportion of price contributed or paid by each vendee is indicated separately. If any of these two ingredients is lacking, then the sale remains one joint indivisible sale and 'a suit for pre‑empting the share of only one vendee without impleading the other vendee is not maintainable."

7. Applying the above principle laid down by Supreme Court, it would appear that both the conditions have been fulfilled in the instant case. Not only the size of the area sold to two groups of vendees has been mentioned but also the price to be paid by each group is ascertain‑ C able. Consequently the argument of the learned counsel with regard to the maintainability of the application for right of pre‑emption has no force.

8. The right of pre‑emption is allowed to tenant of the land by clause (d) of Article 25 of M. L. R. 115, which reads as under :‑

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

9. It is clear from the language of the above clause that right of pre‑emption conferred on tenant of the land is exerciseable only in respect of the area of the land covered by his tenancy. There is no evidence to show that area sold to respondent Dodo and one Allah Rakhio is included in the tenancy of the respondent Ghulam Mohammad. In the absence of such evidence it cannot be held that the respondent Ghulam Mohammad had to exercise his right of pre‑emption in respect of the said area nor can it be held that failure to do so would affect his case relating to the area sold to the petitioners.

10. It was further submitted by the learned counsel for the petitioners that there being no tangible material on the record to prove that the petitioners had fraudulently inflated the price, they have paid for the land, the order of the Deputy Commissioner that Mukhtiarkar would determine the price to be paid by the respondents‑hails on the basis of average sale price of two years is not sustainable. It seems that the order of the Deputy Commissioner with regard to determination of sale price was based on rule 7 of the Sind Land Commission (Pre‑emption) Rules, 1974. It reads as under:‑

"Powers of Tribunal to fix sole price.‑(1) .In case order is made under rule 5, in favour of the tenant‑applicant, the Tribunal shall on being moved by the tenant‑applicant that sale price indicated in the sale deed is fraudulently inflated, have power to examine, assess and adjudicate upon the sale price to be paid by the tenant‑applicant to the land owner.

(2) While determining the sale‑price, the Tribunal shall take into account, among others, the following factors :‑ (i) Average price of private agricultural land sold in the same Deh during two years im mediately preceding the date of the sale in question. (ii) If no sale mentioned in clause (i) is made, then average price of private agricultural land sold in the adjoining Deb during two years immediately preceding the date of the sale in question."

11. The above rule shows that it is only when the tenant moves the Tribunal that the sale price indicated in the sale deed is fraudulent inflated, the Tribunal has power to examine, assess and adjudicate upon the sale price to be paid by the tenant. As provided in sub‑rule (2) of the said rule while determining the sale price, the Tribunal could g take into consideration, amongst others, the factors specified in the said sub‑rule. It was not the case of the respondents‑harts before the Deputy Commissioner that the sale price was fraudulently inflated nor the said respondents had made specific prayer for determination of the sale price by the Deputy Commissioner. In view of this position the Deputy Com missioner was not justified to make the order with regard to determina tion of the price. On the contrary the learned counsel for the respon dents‑haris has shown his willingness to pay the price which the petitioners have paid to the original owner of the land. It would also be noticed that the respondent Dodo who had purchased the 0‑36 paisa share of the land had also paid the sale price at the same rate at which the peti tioners had made the payment. We therefore hold that there is no justi fication to calculate the price as has been directed by the Deputy Commissioner.

12. In view of above, the petition was partly allowed by short order dated 6th March, 1983 to the extent that the price fixed by the Tribunal below shall be substituted at the rate of Rs. 8,000 per acre, for the reasons to be recorded, Above are the reasons for the said order.

M. Y. H. Petition partly allowed.

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