P L D 1982 Supreme Court 159 (PLP)

M. S. H. QURESHI J.‑This judgment will disposed of three Civil Petitions bearing Nos. 1046, 1112 and 1158 of 1981, which we have, during the hearing, converted into appeals. They arise from suits filed by the same pre‑emptor and raise some common questions.

2. Abdul Hamid, the respondent before us, had by separate suits, instituted on 27‑6‑1974, sought to pre‑empt, on the basis of superior right, the sales of agricultural land effected by three sale‑deeds registered on 28‑6‑1973 by Mahboob Alam, etc., in favour of Hafiz Hasan Muhammad, Nazir Ahmad and Rahmat Ullah appellants, respectively. During the pendency of the suits, the lands in question were, by notification dated 10‑1‑1975, added to the limits of Abdul Hakim Town. The vendees/appellants had resisted the suits on the grounds, inter alia, that the pre‑emptor had waived his right of pre‑emption by having facilitated the transaction of the sale, that the suits had been incorrectly valued for purposes of court‑fee and jurisdiction and that the suit lands had, by virtue of the notification including the same within the limits of Abdul Hakim Town, become urban immovable property and as such not subject to pre‑emption. The suits were decreed against the appellants. In the suit against Hafiz Hasan Muhammad decreed on 20‑2‑1979 the trial Court had found a deficiency of Rs. 3,218.25 in the court‑fee affixed on the plaint and had directed the same to be deposited by 3‑3‑1979. The appeals filed by the appellants having been dismissed by the Additional District Judge, Multan, on 17‑5‑1981, they all came up in separate revisions before the High Court but the same, too, were dismissed in limine on 20‑9‑1981.

3. On the question of estoppel, the High Court held that there was no sufficient material to defeat the pre‑emptor's right of pre‑emption. It refused to examine the correctness of the statements of annual net profits as the same had not been questioned before the appellate Court. It also rejected the objection raised on behalf of Haft Hasan Muhammad to the exercise of the discretion by the trial Court in favour of the pre‑emptor in granting him time to make up the deficiency in court‑fee, the reason in the opinion of the High Court being that: "The petitioner has not been able to show anything from the record that the respondent had intentionally failed to pay court‑fee on his plaint at the time of filing of the suit or that his conduct was such that he was not entitled to indulgence shown to him by the learned trial Court". On the question of pre‑emptibility of the suit land in the case against Hafiz Hasan Muhammad, the High Court maintained the findings and held that the notification in question "did not change the character of the suit property so as to make it urban immovable property for the purposes of the Punjab Pre‑emotion Act, 1913, as no Notification under subsection (2) of section 8 of the Act was issued by the Board of Revenue exempting its sale from being the subject‑matter of a pre‑emption suit", and that "the petitioner had not produced any evidence to show that the land in question was being used for purposes other than agriculture and had thus lost its character of being agricultural land". In Nazir Ahmad's case also the finding on this point was upheld though it was pointed out that he had not agitated the issue before the appellate Court. No objection on this point had been raised before the High Court in Rahmat Ullah's case.

4. Aggrieved, the appellants moved this Court for grant of leave to appeal. Learned counsel for Hafrz Hasan Muhammad had, during the hearing of his petition for grant of leave questioned the legality of the trial Court's order granting extension of time for making up the deficiency in court‑fee, for which he relied on Walayat Khaaun v. Khalil Khan (1), Hassan Muhammad v. Zeenat Begum (2), Allah Yar v. Muhammad Riaz (3) and Hidayatullah v. Muhammad Ibrahim (4). In the first three cases the plaintiff had failed to makeup the deficiency within the extended period allowed by the Court and in consequence either the plaint had been rejected under Order VII, rule 11, C. P. C. or the suit had been dismissed, with which decisions this Court had declined to interfere. While dealing with the principle involved, this Court had in Walayat Khatun's case no doubt observed (per K. E. Chauban, J.) that in the category of cases in which on the date of grant of time the suit has already become time‑barred, the Court is not bound or obliged to grant time nor is it to be granted just in routine or mechanically but keeping in view the considerations mentioned earlier in that judgment. In Hidayatullah's case, the plaint had been file( by affixing court‑fee of Rs. 10 only but the court‑fee due was Rs. 5,485 This was considered to be contumacious. But neither of the case; cited is of any help because here it is not the case that the plaintiff had failed to make up the deficiency within the time allowed by the Court, nor had any of the Courts below held the plaintiff to be guilty of contumacy is this regard. In Yaqooh Khan v. Rasool Khan (5), this Court had refused to interfere in the matter of extension of time granted by the appellate, Court to make up deficiency in the c6urt‑fee on the memorandum of appeal upon the view that section 149, C. P. C. gives discretion to the Court to allow and an appellant to pay the deficiency in court‑fee at any stage and on such permission being granted and the fee being paid, it will be deemed as if the fed had been paid in the first instance. No. contumacy having been found of the part of the pre‑emptor in the case of Hafiz Hasan Muhammad, the contention was rejected.

5. Leave was then granted in all the three cases to consider (1) whether the pre‑emptor was estopped by the conduct and (2) the effect of the notification on the pre‑emptibility of the suit lands.

6. On the question of waiver, evidence had been led on behalf of the vendees/appellants to the effect that the pre‑emptor had introduced the (1)PLD1979SC821 (2)1981SCMR1059 (3) P L D 1981 S C 489 (4) 1981 3 C M R 381 (5) 1981 S C M R 155 vendees to the vendors, that he had facilitated the bargain and that he had been present at the time of the sale. The pre‑emptor had denied this oral evidence. All the Courts below held that mere presence, even if accepted, could not amount to waiver. Waiver is a conscious relinquishment or surrender of right. In Fateh Chand and others v. Kirpa Singh and others (1), where the pre‑emptors had been present and had helped in the sale negotiations and one of them had assisted in demarcating the land sold out of a large field, it was held that their conduct, which had actively induced in the vendees' mind the belief that they were perfectly agreeable to the purchase by the vendees and did not intend to enforce their rights, amounted to waiver. But mere presence at the time of the sale has not been considered sufficient to amount to waiver (see Mahmud Bakhsh v. Hassan Bakhsh and others (2)). On the same principle, in Baqri v. Salehon (3), mere presence or even unsuccessfully bidding at an auction had not been considered to amount to waiver and it had been observed that "until a sale actually takes place, no person can assume to have a right of pre‑emption which is not a right m property although it is a vested statutory right". In Shah Bodhraj v. Sundar Singh and another (4), where the plaintiff, a profes sional petition‑writer, had made a rough draft of the deed of sale for the defendant, it was held that there was no waiver. In the present case the oral assertion as to the pre‑emptor's participation in the sale transaction had been denied by him. The question, therefore, whether the evidence produced by the parties showed a conduct on the part of the pre‑emptor amounting to waiver is one of fact and as such the concurrent finding by all the three Courts below will call for no interference.

7. Coming to the notification, the same, as already noted above, had issued during the pendency of the suits. By the notification, the areas mentioned therein had become urban area "for the purpose of" the Basic Democracies Order, 1959. The notification, therefore, was not for the purpose of the Punjab Pre‑emption Act. Nevertheless, it was contended that the same had the effect of excluding the lands in question from the purview of the Act as the lands bad become urban property and that the lands no longer being pre‑emptible on the date of the decree, the pre‑emptor could not succeed.

8. The right of pre‑emption by virtue of section 6 of the Act exists in respect of "agricultural land" and "village immovable property". A right of. pre‑emption also exists, under section 7 of the Act, in respect of "urban immovable property" in any town or sub‑division of a town subject to proof of existence of custom of pre‑emption in such town or sub‑division. All these three terms, namely, "agricultural land", "village immovable property" and "urban immovable property", are. defined in section 3. "Immovable property" either village or urban does not include agriculture and. This is clear from the respective definitions of "village immovable/ property" and "urban immovable property", which both exclude "agricultural land", which term, by adoption of its definition from the Punjab Alienation of Land Act, 1900, means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural Purposes or for purposes subservient to agriculture or for pasture and for this purpose shall even include the sites of buildings and other structure on such lands. The term "urban immovable property", therefore, will (1) 48 PR 1912-13 IC 561 (2)7PR1912 (3) P L D 1972 S C 133 (4) 100 P R 1885 not cover "agricultural land" merely on account of its being located in an urban area. 1t will indeed be a misconception of the law to equate the term "urban immovable property" with "urban property" The Pre‑emption Act speaks only of "urban immovable property". The Board of Revenue is no doubt empowered by section 8(2) of the Act to declare by a notification that no right of pre‑emption or only such limited right as the Board may specify, shall exist with respect to any land or property or class of land or property or with respect to any sale or class of sales. It is nobody's case that the notification in question was issued in exercise of this power. Learned counsel, however, argued that as the property fell in an urban area, the pre‑emptor was required by section 7 to have established that a right of pre‑emption did exist in respect of the same. This argument, too, we are afraid, is misconceived because section 7 concerns only "urban immovable property" and as already pointed out, the lands in question are not "urban immovable property". The contention, therefore, that an agricultural land becomes excluded from the purview of the Act merely on account of its inclusion in an urban area is not tenable.) It was held in Salamat Rai v. Kanshi Ram and others (1), that: "The mere fact that for certain reasons the Local Government has seen fit to include a part of the Premgarh estate within the Municipal limits of Hoshiarpur city, does not necessarily mean that the locality in question has become a part of the town for purposes of pre emption." The same principle was reiterated by a Division Bench in Abdul Rahman v. Haji Rashid (2), when it was held that "the mere fact that a rural area is included within the limits of a town is not conclusive as to the urban character of the area in question" but that it "may lose its pre‑existing character and be then absorbed in the urban area". Here, certain property comprising land and garden which formed part of a village but had sub sequently been included in the Delhi Municipal area, was held to have lost its character as village immovable property because the land in its vicinity was converted to building plots and factories were in existence close to it and what was left of the old village site had been occupied by people not belonging to the original village community. However, in a later case, Ram.Lal v. Municipal Committee Bhera and another (3). Achhru Ram, J., held: "Although a custom of pre‑emption prevails generally in the old town of Bhera, that custom cannot be extended for the purpose of pre‑empting a sale of a property consisting of a building situate outside the old abadi, which was constructed at some time after 1900 on land which till then was agricultural land." The question was again examined in Allah Bakhsh v. Ilahi Bakhsh (4), where it was noted that the Punjab Chief Court had up to the second decade of the twentieth century continued with the consistent view that the agricultural land remains as such irrespective of the fact that it falls within the municipal limits or some construction is raised in the vicinity. However, keeping in view the decisions in some later cases, such as Abdul Rahman v. Haji Rashid (already cited), Hanse Nath and others v. Ragho Prasad Singh (5) (1) A I R 1918 Lab. 334 (2) A I R 1937 Lab. 182 (3) A I R 1947 Lab. 386 (4) P L U 1975 Lab. 359 (5) A I R 1932 P C 57 and Hayat Khan v. Mansabdar Khan and others (1), the learned Judge held that where the khasra girdaivari described a portion of the land as ghair mumkin abadi and alienation had taken place of small pieces of land for construction purposes, the land had become urban immovable property. This view had been approved by this Court in Elahi Bakhsh and others v. G Allah Bakhsh and others (2). In the case in hand, however, there is no, evidence apart from the notification to show that there are other accompanying circumstances to justify a view that the property had lost its character a " and had acquired that of "urban immovable property' agricultural land within the meaning of section 3 of the Act.

10. The result is that the appeals are found to be without merit and are accordingly dismissed with costs. S. A. H. Appeal dismissed. (1) A I R 1935 Lab. 529 ‑ (2) N L R 1980 S C J 286