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Petitioner: SHER MUHAMMAD VS Respondent: AJAIB SULTANHonorable Justice Saad Saood Jan
1988 S C M R 836
1988 S C M R 836
Present: Aslam Riaz Hussain, Abdul Kadir Shaikh, Javid Iqbal, Saad Saood Jan and Ali Hussain Qazilbash, JJ
SHER MUHAMMAD‑‑Petitioner
versus
Mst.AJAIB SULTAN‑‑Respondent
Civil Appeal No.99 of 1985, decided on 9th March, 1988.
(From the judgment dated 12‑3‑1985 of the Lahore High Court, Rawalpindi Bench, in R.S.A. No.888 of 1977).
Land Reforms Regulation, 1972 (M.L.R. 115)‑‑
‑‑‑Para.25‑‑Superior right of pre‑emption‑‑ Respondent claimed that she had a superior right to acquire land in dispute for she was collateral of vendor whereas petitioner alleged that he was tenant in land and by virtue of his status as such he enjoyed first right of pre‑emption under Paragraph 25 of M.L.R.115‑‑Factual position being that vendor and appellant voluntarily put an end to their relationship of landlord and tenant and instead brought about a new relationship of mortgagor and mortgagee between themselves on altogether different terms and with different incidents‑‑When impugned sale took place appellant was holding land as a mortgagee and not as a tenant‑‑Held, appellant could not invoke provision of paragraph 25 of M.L.R.l‑137o defeat superior right of respondent.
Muhammad Munir Peracha, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner.
Ch.Akhtar Ali, Advocate‑on‑Record for Respondent.
Date of hearing: 9th March, 1988.
JUDGMENT
SAAD SAOOD JAN, J.‑‑This appeal by special leave arises out of a pre‑emption suit brought by the respondent. The trial Court decreed the suit and its decree was affirmed by the District Judge, Campbellpur, in first appeal and by the High Court in second appeal.
2. The only question for consideration before us is whether the respondent had been able to establish a superior right to acquire the land in dispute vis‑a‑vis the appellant. Her claim was based on the assertion that she was a collateral of the vendor. At the trial, she was able to prove her assertion and now there is no controversy between the parties over her relationship with the vendor. On the other hand, the appellant alleged that he was a tenant in the land in dispute and by virtue of his status as such he enjoyed the first right of pre‑emption under paragraph 25 of Martial Law Regulation No.115; consequently, the right which the respondent asserted was of no avail against him. The learned District Judge and the trial Court concurrently held that the respondent was not a tenant in the land in dispute and their finding was maintained by the High Court.
3. The land in dispute measures about 80 kanals and 3 marlas. From Rabi 1968 to Rabi 1970, the appellant cultivated about 40 kanals of this land as tenant under the vendor on payment of half of the produce as batai. On 26‑6‑1970, the vendor mortgaged with him the right of cultivation in respect of the entire land for a sum of Rs.3,000. The mortgage was an oral one and was evidenced by a mutation attested on 15‑8‑1970. Under the terms of the mortgage the appellant undertook to pay 1/3rd of the produce to the mortgagor so long it was not redeemed. On 22‑6‑1974, the vendor sold the land to the appellant again by another oral transaction. The mutation in respect of the sale was attested on 12‑10‑1974.
4. There can be little doubt that after the creation of the mortgage, the parties voluntarily put an end to their erstwhile relationship of landlord and tenant and instead brought about a new relationship of mortgagor and mortgagee between themselves on altogether different terms and with different incidents. Thus, when on 12‑10‑1974 the impugned sale took place, the appellant was holding the land as a mortgagee and not as a tenant. He could not, therefore, invoke the provision of paragraph 25 of Martial Law Regulation No.115 to defeat the superior right of respondent. This appeal is without any merit and is dismissed. There will be no order as to costs.
M. Y.H./S‑125/5 Appeal dismissed.