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Writ Petition No-1733 of 1984, heard on 2nd October, 1984.

---Para. 25(2)(d)--Suit for pre-emption --Tenant, held, entitled to first right of pre-emption in respect of land sold, which comprised in his tenancy.

---Para. 25(2)(d)--Suit for pre-emption --Petitioner. (pre-emptor) shown to be in possession of five Khasra numbers, in land sold--Member, -Board of Revenue in reviaional jurisdiction decreed suit of pre-emptor in its entirety--Held, petitioner entitled to a corresponding share of land sold from these Khasra numbers and no more--Order of Member, Board of Revenue being without lawful authority, set aside.

Fateh Khan v. Abdur Rehman 1983 S C M R 298 ref.

---Para. 25 (2) (d)--Suit for pre-emption --Additional Commissioner decreed suit of pre-emptor (petitioner) for share of land sold but without determining sale price payable by pre -emptor--Remand of case to Additional Commissioner for determination of sale/market value of land decreed in favour of pre-emptor, held, necessary--High Court in constitutional jurisdiction restored and maintained decree passed by Additional Commissioner--Provisional Constitution Order (1 of 1981) . Art.9.

Syed Laqa Haider Zaidi for Petitioner.

Ch. Muhammad Ashraf Wallah for Respondents.

Date of hearing: 2nd October, 1984 .

The present constitutional petition calls in question order dated 2-4-1984 of learned Member, Board of Revenue passed in his revisional jurisdiction under paragraph 25 of the Land Reforms Regulation, 1972 , decreeing the plain tiff-pre-emptor's (Respondent No.4) suit to the extent of 36 Kanals on payment of 85.35,000.

2. Brief facts giving rise to the present petition are that Muhammad Nawaz, Ahmad Yar sons of Muhammad Yar alienated land measuring 36 Kanals 720/6424 shares of total land measuring 321 Kanals 4 Marlas Khata No.75 situated in village Kakki Nau, Tehsil Shorkot in favour of Noor Muhammad for an ostensible sale price of Rs.35,000 vide Registered Sale-Deed, dated 18-1-1979. Habib Ullah pre-empted the sale and instituted a suit in the Court of Collector Sub-Division, Shorkot. Right of pre-emption was claimed on the basis of being a tenant in occupation of the land sold. Claim of Habib Ullah to pre-empt the sale made through Registered. Sale-Deed dated 18-1-1979 was resisted by Noor Muhammad. He filed written statement. Apart from certain preliminary objections, averments on merits were also controverted. Pleadings of the parties gave rise to the following issues:---

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Parties produced evidence in support of the above-stated issues. Plaintiff's suit was dismissed by Mr. Ali Tahir Zaidi, Assistant Commis sioner/Collector, Sub-Division, Shortkot vide his order, dated 25-10-1980. Habib Ullah assailed the correctness of the order passed against him, in appeal, before Additional Commissioner (Revenue), Sargodha Division, Sargodha. Vide order, dated 16-8-1981 passed in appeal, learned Additional Commissioner decreed the plaintiff's suit for 720/6424 share of the land sold i.e. 36 Kanals from joint Khata No.75. Without determining the sale price payable by the pre-emptor learned Additional Commissioner observed:----

"The appellant is directed to deposit the sale ,price of the land if within two months from the date of this order failing which his suit shall stand dismissed."

Two revisions one by Habib Ullah pre-emptor (R.O.R. No.2186 . of 1981) and the other by Noor Muhammad (R.O.R. No. 2282 of 1981) were presented before learned Member, Board of Revenue, Punjab, Lahore calling in question order, dated 16-8-1981 of the learned Additional Commissioner. Through order, dated 2-4-1981, claim of Habibullah pre-emptor was decreed in its entirety i.e. 36 Kanals on payment of Rs.35,000, the price mentioned in the Registered Sale-Deed. Revision preferred by Noor Muhammad was consequently dismissed. Noor Muhammad vendee has brought under challenge the order, dated 2-4-1984 passed by learned Member, Board of Revenue decreeing the suit of Habib Ullah respondent. Writ petition was admitted on 3-7-84. It has come before me today for hearing in presence of learned counsel for the parties.

3. I have heard learned counsel for, both the parties and have also perused the trial Court's record made available: Learned counsel for the petitioner Noor Muhammad vendee has submitted that vide Exh.P.3 Registered Sale-Deed, land measuring 36 Kanals, 720/6424 share of land measuring 321 Kanals 4 Marlas, in all, was sold. Khata No. 75 as is evident from the copy- of Register Haqdaran Zamin of the year 1978-79 comprised of 45 Khasra numbers making a total area of 325 Kanals 4 Marlas. The plaintiff. pre-emptor was only entitled to a corresponding share of land sold by the vendors which was comprised in his tenancy. Tenant through pre-emption is entitled to be substituted in place of the vendors and consequently he can lay claim to only portion/share of land sold from each Khasra number which was comprised in his tenancy. In this view of the matter, learned counsel contended that the order of the Member, Board of Revenue decreeing the suit in toto, runs contrary to the plain provisions of para. 25(2)(d) of the Land Reforms Regulation 115 of 1972. Plaintiff was shown to be in possession of Khasra No.143/17, 18, 19, 20/1 and 22. The total area of these Khasra numbers comes to 36 Kanals only. Out of these Khasra numbers 720/6424 share alone has been alienated in favour of the vendees. Secondly, the plaintiff was entitled to lay claim to 720/6424 share of land from these five Khasra numbers. It is not the case of the plaintiff pre-emptor that he is in possession of other Khasra numbers. Therefore, the final order passed by the revisional Court suffers from an error floating on the surface of record and is liable to be quashed in exercise of constitutional jurisdiction. Learned counsel for the respondent-pre-emptor however, has joined issue with the petitioner's counsel. It has been submitted by him that since the plaintiff was in possession of these specific Khasra numbers he was entitled to the whole of the land comprised in these field numbers. Order passed by learned Member, Board of Revenue, therefore, has been defended to have been correctly passed in exercise of proper jurisdiction. Learned counsel also submitted that the order impugned in constitutional jurisdiction had attained finality having been passed in a special jurisdiction conferred on Revenue Authorities under the provisions of Land Reforms Regulation 115 of 1972. Since the order did-not suffer either on account of lack of or excess of jurisdiction, it is not open to interference in constitutional jurisdiction. I have thoroughly attended to the submissions made at bar by learned counsel for the respective parties. Right of pre-emption on a tenant has been conferred under para. 25(2)(d) of the Land Reforms Regulation 115 of 1972 with effect from Kharif 1972. The tenant is entitled to a first right of, pre-emption in respect of the land sold which is comprised in his tenancy. In the case under consideration 36 Kanals of land 720/6424 A share comprised in 45 qittas has been sold through the Registered Sale Deed in favour of Noor Muhammad vendee. These Khasra numbers vary in area. As stated above, Habib Ullah son of Ajar Din pre-emptor is shown to be in possession of only five Khasra numbers. Consequently he was entitled to be substituted for vendors to a corresponding share sold from these Khasra numbers and no more. He had no right to lay claim to other Khasra numbers where he was not recorded to be in possession. The view of law taken by me is strengthened by a precedent case of Fateh Khan v. Abdul Rehman 1983 S C M R 298. Order passed by learned Member, Board of Revenue, therefore, is not only against the plain provisions of para 25 but is in disregard of the above-noted pronouncement of the august Supreme Court of Pakistan. Habib Ullah, therefore, was entitled to succeed only to a corresponding share of land sold from Field numbers found in his cultivating possession as non-occupancy tenant. Order passed by learned Additional Commissioner decreeing the suit for 720/6424 share of the land sold i.e. 36 Kanals from joint Khata No.75 thus proceeded on the correct interpretation of law and factual position as supported by the entries in the Revenue Record. Order dated 2-4-1984 of the learned Member, Board of Revenue being without lawful authority is set aside and that dated 16-8-81 for the extent of land decreed in favour of pre-emptor is maintained anal restored. However, learned Additional Commissioner had not determined' the price subject to which he had decreed the plaintiff's suit. In this, view of the matter, it becomes legally necessary to remand the case to learned Additional Commissioner for determination of the price/market) value of the land decreed in favour of the pre-emptor vide his order dated 16-8-1981. Parties are left to bear their own costs.

M . I . Order accordingly .

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