1985 PLP 560 (MLD)

The facts necessary for the disposal of this revision petition are that the suit for possession through pre-emption filed by the petitioner was dismissed by the learned trial Court vide judgment and decree, dated 19-3-1980. The appeal of the petitioner also failed vide judgment and decree dated 29-11-1980 of the learned Additional District Judge, Sheikhupura. Both the learned Courts below concurrently held on the basis of the oral and documentary evidence on record that the suit property was urban immovable property at the time of its sale and that the petitioner pre-emptor failed to prove that there was custom of pre-emption prevailing in the locality where the suit property is situated. Hence this revision petition.

2. Learned counsel for the petitioner in support of the revision petition has argued that the evidence produced by the respondent vendees was not sufficient to record the finding that the land in question was situated within the municipal limits or was a building site an J had lost its agricultural character. Learned counsel in this connection referred to the Khasra Girdawari (Exhs.P.3) and to the cross-examination of Sheikh Khushi Muhammad (D.W.2) wherein a is mentioned that chillies had been sown at the time of bale in the land in question. It is pertinent to mention here that the land in question measures 2 Kanals 5 Marlas and was purchased by the three respondents, in tile year 1974.

3. The respondents produced seven witnesses in order to prove that the land in dispute is situated within Municipal limits and is a building site. As against this, the petitioner appeared as his own witness and produced Jamabandi (Exh. P.1), copy of the Khasra Girdawri (Exh.P.3) and copies of judgments (Exh.P.5 and P.6). The onus to prove the character of the property was on the respondents. It is in the evidence of the respondents that the suit land was situated within the Municipal limits and that there was Abadi upto two miles on all its sides. Abdul Haq Building Inspector of the Municipal Committee (D.W.4) stated that the disputed property is a building site and is situated within the municipal limits. In cross-examination he stated that the disputed property was included in the municipal limits in the year 1945. He, however, conceded that he had no record at that time with him. The other witnesses also deposed that the suit land is situated in Mohallah Muslim Gunj within the municipal limits. In the cross-examination the fact that the suit land is situated in Mohallah Muslim Gunj was not challenged. Learned counsel for the petitioner argued that the witnesses have not specifically stated as to when the land in dispute attained the status of urban immovable property. This criticism is not correct as it is apparent from the evidence on record that the locality in which the suit land is situated attained the character of urban property much prior to the sale of the suit land to the respondents. Ghulam Abbas (D.W.1) stated that his Poultry Farm is adjacent to the plot in dispute and that Poultry Farm was established by him in the year 1970. Likewise, Sheikh Khushi Muhammad (D.W.2) stated that his house is adjacent to the site in question. In cross-examination he stated that the transaction of sale was transacted at his house. It is apparent, therefore, that his house existed prior to the sale of the suit land. The fact that chillies were sown in the land at the time of sale would not be sufficient for denying to the site in question the character of building site. It is in the evidence of the respondents that the site in question was in Mohallah Muslim Gunj within the area of Municipal Committee and that there was Abadi upto two miles on all sides of the site in question. It is also pertinent to note that civil cases are to be decided on the basis of preponderance of evidence. In the instant case there is virtually no rebuttal to the evidence produced by the respondents. The petitioner appeared as his sole witness and in cross-examination he stated that it is not in his knowledge that the suit land is situated within the municipal limits. Moreover, in the copy of the Jamabandi produced by the petitioner there exists an entry in the red ink that the land is situated within the municipal limits. Again column Nos. 8 and 9 are blank and nothing has been mentioned about Lagan. The entry of chillies in Khasra Girdawari for one or two crops in the circumstances established on the record would not furnish sufficient basis for holding and treating the land in dispute as agricultural land. In this connection, reference may be made to the reported case of Allah Bakhsh v. Ilahi Bakhsh and 3 others P L D 1975 Lah. 359, wherein the land was though described an agricultural land in the revenue record as well as in the sale-deed yet it was held that the land is urban immovable property as Khasra Girdawari described a portion of it as Ghair Mumkin and the alienation were for small pieces of land for construction purposes. In the instant case as well, three persons purchased 2 Kanals 5 Marlas i.e. the suit land, for construction purposes and the said land was also described as a building site in the sale-deed.

4. In view of the matter above, the concurrent findings recorded by the learned Courts below cannot be said to be arbitrary or unfounded. Neither there is any misreading of evidence nor any important piece of evidence has been kept out of consideration. Moreover, interference in exercise of Revisional jurisdiction is not possible as no jurisdictional defect or error in the proceedings held or the impugned judgments has been pointed out.

5. For the reasons given above, there is no merit in this revision petition and the same is dismissed, leaving the parties to bear their own-costs. A. A. Revision dismissed.