1988 PLP 1294 (CLC)

(b) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑Ss. 7 & 16‑‑Pre‑emption suit in respect of urban immovable property‑‑Superior right of pre‑emption‑‑Superiority of pre‑emptor's right of pre‑emption having been established on account of his house being contiguous to land in dispute and also quantum of sale consideration not being disputed, judgment of Appellate Court below in respect of superior right of pre‑emptor, held, did not demand any interference. Umar Bakhsh v . Abdul Karim 70 P R 1898; Muhammad Din v . Shah Din 90 P R 1907; Imperial Oil v. . M. Misbah‑ud‑Din I L R 2 Lah. 83; Vaishno Das v. Hem Raj A I R 1921 Lah. 279; Lekh Raj v. Inder Mal A I R 4 Lah. 176; Lala Dewan Chand v. Nizam Din 75 I C 610 and Mst. Maqsooda Begum v. Maulvi Abdul Haq P L D 1968 Lah. 897 ref. Ch. Aziz Ahmad for Appellant. Ali Ahmad Malik for Respondents. Dates of hearing: 25th November, 1984, 26th March, 4th June, 1985, 18th May, 1986, 8th, 24th February, and 29th June, 1987. This appeal is directed against the appellate judgment and decree of the learned District Judge, Jhang, dated the 30th October, 1971, which, after reversing the dismissal of the respondents' suit for possession by pre‑emption of 10 Marlas of the land in dispute, entered in Square No.145, Killa No.10/2, situate in Shorkot town, district Jhang, recorded by the learned Civil Judge, Jhang, on the 20th March, 1971, decreed the suit on payment of Rs.2,

000. Fazal Muhammad, appellant, purchased the land in question from Imam Din, Faqir Muhammad, sons, Mst. Dauli and Mst. Hajran, daughters of Chaudhry Fauja, by means of the sale‑deed, EXh.D.l, which was scribed on the 19th .and registered on the 20th April, 1969. Faqir Muhammad alias Faqiria, respondent, whose house is contiguous to the property in dispute and who on the basis of such contiguity claimed right of pre‑emption superior to that of the appellant, instituted suit on the 26th April, 1969, to pre‑empt the sale. According to him the property lay within the urban area and municipal limits of Shorkot town where custom of pre‑emption prevailed. He stressed that the custom. of pre‑emption was also in vogue in Mohallah Maidanawala wherein the property was situate. The sale consideration is no longer in dispute.

2. The appellant denied that the land in suit constituted urban immovable property and gave a lie to the respondent's assertion that custom of pre‑emption was in existence in Shorkot town and for that matter in Mohallah Maidanawala. He disputed the superiority of the respondent's pre‑emptive right.

3. The learned Civil Judge, who tried the suit, formed the view that the land in dispute could not be called urban immovable property as it had the character of agricultural land at the time of sale and no custom of pre‑emption was shown to be in existence in Mohallah Maidanawala. He non‑suited the respondent. However, in appeal the learned District Judge took the contrary view and treating the land to be urban immovable property and accepting the existence of custom decreed the suit. Feeling aggrieved the appellant has approached this Court in further appeal.

4. Shorkot, as described in the District Gazetteer of Jhang district prepared in 1929, is of undoubted antiquity and has been under Muslim rule for centuries. Mazars of Muslim saints in and around Shorkot are indicative of Muslim influence. These facts coupled with the copies of judgments and decrees of pre‑emption suits relating to houses placed on the record by the plaintiff‑respondent show that the law and custom of pre‑emption prevailed and was practised in regard to transactions of sale of the property situate in Shorkot town. Even the learned counsel for the appellant conceded the existence of custom of pre‑emption at the time of commencement of the Punjab Pre‑emption Act, 1913, in Shorkot town. However, the case which he wanted to build up was that the piece of land in dispute had been used for a considerable length of time for agricultural purpose, was situate away from the main abadi of Shorkot town and as such the custom of pre‑emption prevailing in Shorkot town could not be extended to it. He drew attention to the entries of the jamabandis for the years 1925‑26, 1927‑28, 1935‑36, 1939‑40 1943‑44, RL‑II containing final order, dated the 28th September, 1961, Khasra girdawari register from Kharif 1944 to rabi 1969, whose copies are Exhs.D.3, D.4, D.5, D.7, D.8 and D.9, respectively. As per entries of the Khatuni of 1930‑40, copy Exh.D.6, the land entered in Killa No.10/2 in dispute bore Khasra Nos. 2917‑min, 2928‑min and 2932‑min prior to 1939. It may be mentioned that the disputed land was formerly owned by Hindus evacuees and was transferred to Chaudhry Fauja, whose sons and daughters sold it to the. appellant, as urban property. In the above‑mentioned jamabandis and Khatuni (copies Exhs. D.3 to D.7) the land is entered as agricultural and being irrigated by well water. In RL‑11 the source of irrigation is given as canal water. The entries of the Khasra girdawari register (copy Exh.D.9) bear out that it had been generally under only one crop of rabi till 1954. Thereafter, till the time of its sale nothing was sown therein. Long before sale it had ceased to be used for agricultural purpose and had acquired the character of urban immovable property.

5. As per the appellant's own evidence the land is situated in Mohllah Maidanawala within the Municipal limits of Shorkot. The learned counsel for the appellant, despite availing of ample time, could not produce any Government notification or order in support of his contention that the land had been initially outside the limits of Town Committee, Shorkot, and had been included in the Municipal Committee, Shorkot, just a few decades before. The oral statement of Ghazanfar Ali, Tamil Clerk of Shorkot Municipality P.W.1, who was born on the 4th April, 1946, that the land had been included within the Municipal Committee 10 or 20 years before does not seem to give correct picture. His oral testimony in this behalf cannot be accepted equivalent to documentary proof in the form of Government notification or order, which was quite easy for the appellant to produce, for establishing the inclusion of the land within the municipal limits on a specified date. Even Ghazanfar Ali, P.W.1, bore out that the land was in the old abadi of Shorkot town. The mere fact that Mohallah Maidanawala, where the land lies, is on the northern end of Shorkot town does not mean that this Mohallah constitutes a new abadi of the town. It is an old mohallah and forms part of Shorkot town. Existence of pieces of agricultural land in an old town is quite common and the use of land in dispute for agricultural purpose at one time hardly take it out of Shorkot town where the custom of pre‑emption is well rooted. In the circumstances, the locality where the land in dispute lies cannot be treated as suburb or new outgrowth of Shorkot town so as to take it out of the pale of application of law of pre‑emption as held in Umar Bakhsh v. Abdul Karim 70 P R 1898, Muhammad Din v. Shah Din 90 P R 1907, Imperial Oil v. M. Misbah‑ud‑Din I L R 2 Lah.

83. Vaishno Das v. Hem Raj A I R 1921 Lah. 279, Lekh Raj v. Inder Mal A I R 4 Lah. 176, Lala Dewan Chand v. Nizam Din 75 IC 610 and Mst. Maqsooda Begum v. Maulvi Abdul Haq P L D 1968 Lah. 897, cited by the learned counsel for the appellant. The superiority of the respondent's right of pre‑emption on account of his housel being contiguous to the land as also the quantum of sale consideration being not in dispute the judgment of the learned appellate Court below does not demand any interference. The appeal is dismissed, leaving the parties to bear their own costs. H.B.T./F‑61/L Appeal dismissed.