2013 PLP 913 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Facts giving rise to this appeal, by leave of the Court, briefly stated are that respondent-plaintiff filed a pre-emption suit with regard to the suit land which was purchased by the appellant-defendants in terms of the registered sale deed dated 12-1-1980. It was averred in the plaint that the land was cultivatable and that respondent-plaintiff being an owner in the estate had a right to pre-empt. Appellant in the written statement took the plea that the suit land was part of Shakargarh Town; that it was no longer agricultural and had assumed urban characteristics. It was also pleaded that there was no custom of pre-emption in Shakargarh at the time of promulgation of Pre-emption Act, 1913. In terms of the written statement, following issues were framed:-- (1) Whether the plaintiff has no locus standi and cause of action? OPD (2) Whether the sale in dispute is not pre-emption in view of preliminary objection Nos.2 and 3 of defendants? OPD (3) If issue No.2 is not proved whether the plaintiff has superior right of pre-emption qua the defendant? OPD (4) Relief

2. The learned trial Court in terms of its finding on issue No.2 decreed the suit which judgment and decree was reversed in appeal by the learned Additional District Judge vide judgment dated 26-3-1996 and suit was dismissed. The learned High Court vide the impugned judgment dated 26-2-2009 allowed respondent's civil revision and restored the judgment and decree of the trial Court.

3. Leave was granted by this Court in terms of order dated 14-7-2011 which reads as follows:-- "It is, inter alia, contended that the judgments of the Courts below are at variance and the learned High Court without adverting to material evidence on record reversed the judgment of the learned appellate Court and held the suit land to be agricultural land notwithstanding the fact the suit land was a small piece of two kanals; that it was surrounded by built houses; that by all stretch of imagination it was an urban property not subject to the pre-emption law. In support of his submissions he relied upon a judgment of this Court reported at Muhammad Hussain and others v. Ghulam Qadir through Legal Heirs (PLD 2006 SC 594). Having heard the petitioner at some length, leave is granted, inter alia, to consider the issues raised."

4. Learned counsel for the appellants in support of this appeal submitted that the learned High Court in accepting respondent's civil revision and restoring the order of the learned trial Court whereby suit was decreed has misread material evidence on record; that the prosecution witnesses had admitted that the land was part of Shakargarh Town and further no evidence was led by the respondent-plaintiffs to prove that no custom of pre-emption, existed.

5. Learned counsel for the respondents on the other hand defended the impugned judgment by submitting that the right of plaintiff to pre-empt the suit land was fully established; that merely because the land becomes part of a town would not ipso facto exclude the operation of the Pre-emption Act unless it is shown that it was no longer agricultural land and that the learned High Court in holding that it was agricultural land had examined the revenue record pertaining to Khareef 1979 to Khareef 1980 which indicated that crops had been sown and this by itself was enough to show that the land had not acquired urban character.

6. In the written statement filed by the appellant/defendant two preliminary objections were taken to the effect that the suit land was part of the extended Shakargarh Town and that the suit land was no longer pre-emptable as it had become urban and further that no custom of pre-emption existed. In precise terms, two objections were as follows:--

7. During trial the plaintiff examined only two witnesses. P.W.1 is Inayat. He claimed to be a resident of the locality where the suit land is situated and also to own agricultural land but in cross-examination could not give the particulars of Khasra numbers. He named three persons who according to him cultivated the land around the suit land namely Suleman, Nazir and Sheikh Hidayat but none of those persons were produced as witnesses. The second witness is P.W.2, plaintiff himself. He admitted that the suit land is situated in Shakargarh which is a town. He also admitted that on one side of the suit land there is a bus stand and on the other is a railway line which is adjacent to Mohallah Rashid Pura.

8. On the other hand, the appellant-defendant produced D.W.1 Munshi Barkat Ali who is a scribe of the registered sale deed (Exh.D1). D.W.2 is Ghulam Muhammad who candidly stated that the suit land is within Municipal Committee Shakargarh. D.W.3 is Muhammad Khurshid Alam who tendered affidavit (Exh.D2) to the effect that the land is situated in the Shakargarh Town. D.W.4 is Muhammad Rafiq, he corroborated the statements of D.W.2 and D.W.3 that the suit land is part of Shakargarh Town and that around the suit land there are residences. D.W.5 is Muhammad Idrees defendant himself who stated that he had purchased the suit land to construct a house; that they had erected boundary wall and that no custom of pre-emption existed in Shakargarh.

9. An analysis of the evidence led would indicate that the suit land was part of the Shakargarh Town and assumed the characteristics of an urban, immovable property. The expression "urban immovable property" has been defined in subsection (3) of section 3 of the Punjab Pre-emption Act, 1913 which law admittedly regulated the pre-emption sales at the time when the transaction took place. It reads as follows:-- "(3) 'Urban immovable property' shall mean immovable property within the limits of a town, other than agricultural land. For the purposes of this Act, a specified place shall be deemed to be a town

(a) if so declared by the Board of Revenue by notification in the official Gazette, or (b) if so found by the Courts."

10. A close look at the afore-referred provision would indicate that the urban immovable property is not merely the immovable property which fell within the limits of a town as declared by the Board of Revenue but the courts of law could also hold any property to be urban immovable property if there was evidence to that effect. The suit land was a small plot of two kanals and it was specifically averred in the written statement that it was purchased for building a house; that it was part of the Shakargarh Town; that no custom of pre-emption prevailed at the relevant time. Respondent-plaintiff did not lead evidence to prove that it was not urban property. The sale deed itself indicates that the suit land was purchased for construction purposes and three vendors had placed on record their affidavits to the effect that the suit land was not agricultural and further that it was sold for construction purposes. The plaintiff did not lead any evidence in rebuttal. No counter affidavit was submitted and at no stage the Court was requested to summon the deponents of those affidavits for cross-examination. Thus this part of the evidence led by the appellant-defendant remained uncontroverted. In Elahi Bakhsh and others v. Allah Bakhsh and others (NLR 1980 SCJ 286), this Court upheld the judgment of the High Court in similar circumstances and held as follows:- "It may be mentioned that the area involved was only ten marlas (in each case) and the High Court has, after perusal of the relevant record, held that a part of it was shown therein as 'Ghair Mumkin Abadi'. It was surrounded by houses, "Pucka" metalled road and was located within the municipal limits of Multan City. Thy High Court referred to a large number of cases cited before it by the learned counsel for the parties for the purpose of the relevant factors which in such cases are to be taken into the consideration, and after referring to the same in the light of the facts and the circumstances of the present case held that the property in dispute was "Urban immovable property" and further that "the perusal of the sale deeds and area mentioned therein obviously goes to show that the alienations were for 'small pieces of land for constructions purposes". This view of the High Court appears to be well considered, which does not suffer from mistake of any legal principle in the matter of appreciation of evidence in cases of this type and is fully supported from the facts and features mentioned therein."

11. Similarly in Muhammad Hussain v. Ghulam Qadir (PLD 2006 SC 594), this Court having considered the evidence led came to the conclusion that the land had the characteristics to be classified as urban immovable property and was not pre-emptable. The appeal was allowed and the suit was dismissed.

12. For what has been discussed above, this appeal is allowed, the impugned judgment is set aside and the judgment of the learned Additional District Judge dated 26-3-1996 dismissing the suit is restored. MWA/M-25/SC Appeal allowed.