P L D 1994 Peshawar 188 (PLP)

4. The judgment and decree of the appellate Court is assailed in this revision by the vendees. One of the vendees has died and is substituted by his L.Rs.

5. Sh. Wazir Muhammad, Advocate, for the petitioner contended that the appellate Court was not correct in decreeing the pre‑emption suit, for, it is proved on the record that the suit property has lost the character of the agricultural property and is surrounded by the bungalows within the area of Municipal Corporation. In support of his contention that a sale of such land proved to be within the urban area is not pre‑emptible, reliance was placed on the following case‑law:‑‑ (1) PLD 1975 Lahore 359. (2) 1981 SCMR 239. (3) PLD 1986 Lahore 242. (4) PLD 1988 Peshawar 13.

6. The learned counsel for the petitioners submitted that the authorities referred to above were ignored by the appellate Court though referred.

7. Mian Muhammad Yunis Shah, Advocate, for the plaintiff‑respondents in reply argued that the case‑law cited at the bar is not applicable to the instant case, for, the question involved is a question of fact to be decided on the basis of evidence recorded at the trial. He contended that, the vendees had purchased undivided shares in the Khata and the land is shown as Nehri Awal in the mutation which is agricultural land, the sale of which could be pre empted.

8. I have considered the respective contentions of the learned counsel for the parties and have also perused the evidence. The evidence brought on the record clearly shows that the suit Khata in which the suit Khasra number is situated has lost the character of agricultural property. The conclusion arrived at by the learned Civil Judge about the nature of the land is based on correct appreciation of evidence which could not be upset by the appellate Court. It is true that in the revenue papers up to Jamabandi for the year 1970‑71 the land is shown as agricultural property but now the entire area has been converted into residential area and plots and no joint Khata is in existence. The Patwari Halqa admitted this fact that the suit Khata and its surrounding area have now amalgamated into Gulberg Residential Colony. Even Subedar Sher Afzal plaintiff admitted that the locality of Gulberg consists of bungalows and the suit property is surrounded by the vacant plots. The appellate Court has therefore, misread the evidence. The Khata may be joint but in fact the area I has become an urban area. In this situation the plaintiff‑respondents cannot claim the superior right of pre‑emption. In Allah Bakhsh v. Ilahi Bakhsh and 3 others PLD 1975 Lahore 359 the concurrent findings of the two Courts that the land in dispute was agricultural property though situated within the Municipal Committee's limits were set aside and the pre‑emption suits were dismissed. It would be of advantage if the relevant observations made therein are reproduced hereunder:‑‑ "The property having adopted the colour of urban immovable property the onus lay on the pre‑emptor to show that custom of pre‑emption for urban immovable property also existed in that area. Learned counsel for the respondent is unable to refer to any such evidence on the record. He, however, reiterated his stand by the submission that since the land in dispute is described as agricultural land in the revenue records and in the head-notes of the sale‑deeds the property is pre‑emptible as agricultural land. I have already discussed that the Khasra Girdawari also describes a portion of the land as ghair mumkin abadi and the perusal of the sale‑deeds and area mentioned therein obviously goes to show that the alienations were for small pieces of lands for construction purposes. The land in dispute, therefore, is obviously urban immovable property." The aforesaid judgment of the Lahore High Court was challenged before the Supreme Court where leave to appeal was refused. 1982 SCMR 457 may be seen.

9. The point in issue in the present case is similar to that which came up for decision before this Court in the case of Dr.Abdul Jamil v. Malik Nazar Mohyuddin and others PLD 1988 Peshawar

13. On the basis of evidence and relying on the case of Raja Khizar Hayat and others v. Saleh Muhammad reported in PLD 1986 Lahore 242, it was held that the land which had not retained its agricultural character and is now covered by built‑up area, the pre emptor cannot be allowed to claim that the suit land is an agricultural land and that he has the right of pre‑emption thereto. The appellate Court's findings are not supported by the evidence on record whereas the trial Court's findings are not supported by the evidence. The legal position as enunciated in the aforesaid case‑law is in favour of the petitioners.

10. For the aforesaid reasons this revision is accepted, judgment and decree dated 6‑4‑1985 of the learned Addl. District Judge‑I, Peshawar is set aside and that of the learned Civil Judge, Peshawar dated 5‑6‑1984 is restored. The parties are, however, left to bear their own costs. AA./1552/P Revision accepted.