P L D 1966 (W (PLP)

3. On appeal, the learned District Judge, Hazara Camp, Mardan maintained the findings of the Court below on all the issues and dismissed the appeal filed by the defendants, with costs, by his order, dated 19‑10‑

63. The defendants have now come in regular second appeal to this Court.

4. The appellants claim exemption under section 5(c) N.‑W. F. P. Pre‑emption Act, 1950, which extends exemption to the agricultural land and village immovable property purchased to the extent of two kanals by the residents of the village for constructing a house for their own residence, where they neither own a house not a vacant site measuring more than one kanal. The two Courts below have come to the conclusion that neither the appellants were the residents of the village nor the disputed property was the village immovable property, and therefore, section 5 (c) Pre‑emption Act, 1950, was not applicable. The evidence examined by the parties; shows that the appellants reside within the Municipal limits of. Mardan, and the suit property was included within the Municipal limits, which has lost its rural character. Learned counsel for the respondent raised an objection that the concurrent finding of fact arrived at by the two Courts below that neither the appellants are residents of a village nor the suit property is situate in a village, cannot be disturbed in second appeal. This objection, in my opinion, is not tenable because the question as to whether a place is a town or a village, is a pure question of law and second appeal is competent. Reliance was placed on P. L R 1920 Case No. 56, where it was held: "that the question whether Padhana was a village or a town was a question of law and second appeal against the finding of the lower appellate Court was competent." To prove that the suit property was situate in a village, and that the appellants were residents of that village, learned counsel for the appellants referred to the plaint, where the defendant appellants are shown as residents of Hoti. In the original sale deed, certified copy Exh. D. W. 1/4, in the Jamabandi for the year 1960‑61, copy Exh. P. W.1/1 and in mutation Nos. 6599, 6600, 6688, 6770, 6771, 7682, 6784, 6853, 6952, .')31), 6979 and 7132, certified copies Exhs. 1 to 11, Hoti is described as "mauza". It was urged that Hoti is essentially and originally a village, and the point would be as to whether its inclusion in the municipal limits is a conclusive factor for changing its character into a town. It is conceded that it was a factor, which can be considered and cannot be ignored, but it was contended that it was not a conclusive factor to show that the character of Hoti was changed into a town. For the definition of "village immovable property", the counsel referred to S. 3 of the N.‑F. W. P. Pre‑emption Act, 1950. Subsections (1) to (3) of section 3 are to the following effect:‑

(1) "agricultural land" shall mean ' land as defined in the Punjab Alienation of Land Act, 1900, as amended by Act 1 of 1907, but shall not include the right of a mortgagee, whether usufructuary or not, in such land, (2) "Village immovable property" shall mean immovable property within the limits of a village other than agricultural land. (3) Urban immovable property" shall mean immovable property within the limits of a town, other than agricultural land. For the purposes of this Act as a specified place shall be deemed to be a town: (a) if so declared by the Provincial Government by Notification in the official Gazette, or (b) if so found by the Courts." The learned counsel submitted that in view of subsection (3)(a) & (b) quoted above, it was necessary that a place shall be deemed to be a town if so declared by the Provincial Government or so found by the Courts. The parties have not been able to find any notification by the Provincial Government declaring Hoti to be a town for the purposes of pre‑emption. There is, however, material on the record to show that Hoti is a town, and that the appellants are not residents of the village. Mst. Dilbarjan, when examined on 19‑3‑1963, before the settlement of issues stated. We (defendants) do not own any house or land in Mardan city." When examined as D. W. On 14‑4‑1963, she stated: "I am resident of Mardan since my forefathers", In para. 1 of their joint written statement, the appellants stated that they had purchased the suit land for Rs.9,250, which was valuable property and was situate within the limits of Municipal Committee, Hoh. In para. 2 they stated that they had applied to the Municipal Committee. Hod and the P. W. D. (B. & R.) seeking permission to build a house, as the suit property was situate within the Municipal limits of Hoti Mardan. They further objected to the valuation of the suit on the ground that ad valorem court‑fee was payable, as the suit land was not culturable. Taking these facts into consideration, it would appear that the suit property is situate within the Municipal limits of Hoti Mardan and it is not culturable. Section 5 (c) of the N.‑W. F. P. Pre‑emption Act extends exemption to rural immovable property and does not extend exemption to urban immovable property. It was urged by the counsel for appellant, that the conclusive test as to whether a place is a town or a village, is the avocation of the people. In support of this contention, reliance was placed on A I R 1935 Pesh.

114. At page 115, it was observed:‑- "Though there are many features which may be relied upon in distinguishing a town from a village, there can be little doubt that a group of residences of a compact agricultural community relying mainly upon agriculture for livelihood will ordinarily form a village, whilst a large group of houses inhabited largely by a heterogeneous population dependent upon trade, rather than agriculture and in which relationships are contractual rather than Customary, will if of sufficient size, form a town." I agree with the proposition of law cited by the learned counsel for the appellants but it was for the appellants to prove that the disputed property was situate in a village and they were residents of the village, and they failed to produce any evidence in support of this plea. To show that Hoti is a town, learned counsel for the respondent referred to Civil Appeal No. 111/47 of 1922, decided by the Judicial Commissioner, N: W. F. P. on 31‑3‑1924. In the course of judgment, it was observed:‑

"The Sub‑Judge found in the affirmative while the Divisional Judge found that though the custom as alleged does exist at the present time in what is now the town of Hoti, this place was not definitely declared a town until the judicial decision by the Divisional Judge of Peshawar in 1892. The Sub‑Judge also held that though judicial recognition of Hoti as a town did not come until 1892 the decision by the Divisional Judge that he had definitely showed that the custom was in existence eversince the town of Hoti was built." From this authority, it is obvious that Hoti was declared to be a town as for back as 1892. Learned counsel for the appellants, however, objected that the decision given in Civil Appeal No. 111/67 mentioned above, was not applicable, as the decision that Hoti was a town or a village, was given under another Act. In support of this contention, he relied upon 73 I C

200. At page 201 it was observed. "It is, open however to parties in the present case to show that Bhanamari should nevertheless be found to be a village for the purposes of pre‑emption by the present Court. At the same time the onus will lie very heavily upon the person who asserts that Bhanamari is a village for the purposes of pre‑emption. I am unable to see that this onus has been in any way discharged. Bhanamari has been included within the limits of the Municipality of Peshawar, it is no doubt true that an administrative act including an area within the limits of a Municipality does not necessarily operate to destroy the pre‑existing character of the area and that such an administrative action is not in itself sufficient to make the area so included a sub‑division of a town for the purposes of pre‑emption. At the same time the inclusion of an area in Municipal Limits is strong evidence of the urban character of that area." The authority relied upon by the appellants' counsel, does not exclude Civil Appeal No. 11/47 of 1922, decided on 31‑3‑1924, from consideration. This appeal, which was based on a previous judgment of the Divisional Judge, shows that Hoti was declared as a town in 1892. The inclusion of the suit land within the Municipal limits of Hoti is a strong evidence of its urban character, and so I hold that the suit land is situate in Hoti, which is a town and section 5(c) of the Pre‑emption Act, 1950, is not applicable.

5. The defendant‑appellants were required to prove all the ingredients of section 5(c). To claim exemption under section 5(c) of the Pre‑emption Act, 1950, the defendant ‑appellants had to prove that the land purchased was required for constructing al house for their own occupation. The statement of Amanullah D. W. 2 read with the site plan Exh. D. W. 1/2 & 3, prepared by him at the instance of the defendant‑appellants, showing the details of the intended "abadi", would show that the proposed construction has been divided into three portions, (a) for building five houses for rent, (b) for constructing a house for the residence of the defendants and (c) for construct ing shops for rent. Gulzar Muhammad, Municipal Over seer D. W. 3 stated that the application of the defendant-appellants for the construction of houses and shops was forwarded to the higher authorities and was still pending sanction. From site plan Exh. D. W. 1/2 & 3 it is obvious that the construction on only half the area of the property is meant for the residence of the appellants, while the construction on the other half consisting of five shops and quarters is not meant for their residence. The learned counsel for the appellants urged that the construction of shops on a portion of the suit property will not disentitle them from claiming the protection afforded by section 5(c) of the Pre emption Act, because the building would be mainly used as a residence, and the mere fact that a part of it is set apart for the construction of shops, will not convert the whole of it into shops. In support of this contention he relied upon A I R 1923 Lah. page 209, where it was held:‑-- "The word 'shop' denotes a building primarily used for the retails sale of goods. Where a building was mainly used as a residence the mere fact that a part of it is used as a tailor's workshop does not convert the whole of it into a shop." This authority, in my opinion, is not applicable, because in that case the entire building was mainly used as a residence and only a part of it was used as a shop. In the instant case, five shops and six small houses are proposed to be built on a portion of the land for rental purposes, and it cannot be said that only a part of the building is being used as a shop, and so I maintain the findings of the two Courts below on issues 1 and 2.

6. There is no evidence on the record to show that a sum of Rs. 9,250 was fixed in good faith and paid. From the endorsement of the Sub‑Registrar on the back of the sale‑deed, it appears that the amount paid before him was Rs. 5,

260. Apart from the payment of the money before the Sub‑Registrar, there is no evidence on the record to show that the remaining sum of Rs. 3,990 was paid, and thus the amount paid before the Sub‑Registrar, is the best evidence of what has been paid. It is not necessary for the Court to determine the market value of the property, sought to be pre‑empted, by other evidence.

7. As a result of the foregoing discussion, I maintain the judgments and decrees of the two Courts below and dismiss this appeal with costs. S. Q. Appeal dismissed.