1993 PLP 1336 (SCMR)

MUHAMMAD AFZAL LONE. J.‑‑‑This appeal by leave (o appeal by the legal representatives of the plaintiff in a pre‑emption suit, arises out of the judgment dated 7‑4‑1990, rendered by a LYA Bench of the Lahore, High Court, Lahore, whereby the vendee's appeal was accepted and the pre‑ emptor's suit dismissed. The dispute relates to land measuring 17 Kanals, 2 Marlas, situate in village Botar, Tehsil and District Sialkot. The deceased plaintiff, namely, Said Ahmad rested his claim as to superior right of pre‑emption largely on the plea that he was owner of the 'Patti' in which the land in dispute was situate. Qaim Din vendee, who is represented by his legal heirs, respondents Nos.l to 6 herein, contested the suit and contended that there was no regular Patti or sub division in the village. This controversy is covered by Issue No.2, which is to the effect as to whether the pre‑emptor was clothed with the superior right of pre‑ emption qua the vendee, on the basis of the ground aforesaid. This issue alone requires adjudication in this appeal.

3. It may be stated that after the sale of the suit land, village Botar went under consolidation and an area equivalent to the land in question, comprising other Khasra numbers, was allotted to the vendee by the Consolidation Authorities. This land and the land originally purchased by the vendee as per Revenue Record, are located in the same Patti. With the permission of the trial Court the deceased plaintiff filed an amended plaint, and Khasra numbers of the land allotted to him, in the consolidation proceedings, were also mentioned therein. The trial Court on consideration of the evidence on the record, particularly the statement of the Patwari and the copies of the Revenue Record, comprising Jamabandi and pedigree‑table, gave a categorical finding that the land in dispute was situate in Patti Amir Khan; the pre‑emptor was owner in that Patti and that the vendee was not possessed of this qualification. Before the trial Court it was urged that the fields of different Pattis were intermixed and thus there As no definite recognized Patti in the village. But this argument was repelled; and as observed earlier, a finding rendered that in the case of Tarf Amir Khan the Tribal bond was fully established; meaning thereby that Patti Amir Khan was a well‑recognized sub‑division of the village. Consequently Issue No.2 was decided in favour of the pre‑emptor. In view of the trial Court's findings on other material issues against the vendee, the suit was decreed.

4. It is evident from the record that at the first appellate stage, on behalf of the vendee, it was urged that on account of consolidation proceedings the pre‑emptor lost his superior right of pre‑emption and, in any case, the land purchased by the vendee having gone out of his hands, the right of pre‑emption could not be enforced against the land allotted to him in lieu thereof. These arguments, were, however, controverted by the learned Additional District Judge who was seized of the appeal. He endorsed the pre‑emptor's stand that in execution of the decree passed in respect of the land compromised in the sale‑deed, he could take over the land allotted to the vendee during the consolidation proceedings. The First Appellate Court affirmed all the findings of law and fact recorded by the trial Court and dismissed the appeal.

5. The vendee then preferred a second appeal in the High Court and a learned Single Judge took the view that the question as to whether the village comprised recognized sub‑divisions was a question of fact and likewise the finding that the pre‑emptor was co‑owner in Tarf Amir Khan was also characterized by a finding of fact which could not be disturbed in second appeal. As a result of these findings, the appeal brought by the vendee before the High Court also failed.

6. The unsuccessful vendee then filed L.P.A. in the High Court. A learned D.B: relying on Wazir Din v. Hidayat and 2 others 1973 SCMR 254 wherein it is laid down that mere mention of Pattis in the Revenue Record by itself does not prove that the village is divided into sub‑division, as observed above, accepted the appeal. The LPA Bench's judgment dated 7‑4‑1990 is under challenge before us. The operative part of the impugned judgment runs as under:‑‑‑ "We have examined in detail the documentary as well as oral evidence produced by the plaintiff from which it is manifest that no evidence was led that Patti Amir Khan was a recognized sub‑division of a village. It appears that the plaintiff merely relied upon the entries in the Revenue Record in which this Taraf was named as Taraf Amir Khan and no effort was made to produce evidence to prove as to whether it was recognized sub‑division. The other reported judgments from Indian jurisdiction supra referred to by the learned counsel for the appellants laid down the rule as to in what manner the recognized sub‑division of the village for maintaining a suit for pre‑emption on the ground of ownership of land in the same Patti has to be proved. In judgment reported as Parbhu v. Shamsud Din and another AIR 1948 Lah. 199 it has been held that in order to determine whether a particular Patti was a recognised sub‑division of a village in the true sense of that term reference must be made to the Kafiayat‑e‑Deh of the village and it should be ascertained whether the sub‑division of the village was between various branches of one family or whether these sub‑divisions were made by the Revenue authorities for fiscal purposes only. It has also been remarked that subsequent history of the ownership in the sub‑division was not the determining factor in order to find out that the sub‑divisions when originally founded were homogeneous in descent as well as in area. To the same effect is the view held in the other reported judgments. Considering the casein the light of these reported judgments and the criteria laid down in them to prove recognised sub‑division or Patti, the evidence produced by the plaintiff falls far short of the legal requirement to prove that Patti Amir Khan was a recognised sub‑division. It could not be so held merely because in the revenue papers it was recorded as Patti Amir Khan unless other evidence was produced in respect of history of the village to prove that it was recognised sub‑division in the true sense of the term as used in the Pre‑emption Act:"

7. The leave grant order in so far as it mentions the points requiring examination in appeal is reproduced below:‑‑‑ "Reasons advanced in the impugned judgment, however, emphasized the need for tracing the history of the village through documentary evidence so as to establish the existence of a division in the village Pattiwise. Learned counsel for the petitioners has, inter alia, contended that even the respondent/vendee side at the first appellate stage had sought acceptance of their appeal on the plea that they were also owners in Patti Taraf Amir Khan because they owned land in Chah Mughalwala, which was in the said Patti of Amir Khan. However, at the second appellate stage the vendees changed their plea and urged that there was no recognised Patti in the village:

8. In order to prove Issue No.2, the only evidence relevant nn the point, led by the appellants' predecessor‑in‑interest, is his own statement to the effect that the land in dispute was situate in Patti Amir Khan and he was also owner in that Patti. The deceased plaintiff examined only one witness; namely, Rehmat Ali Patwari, who stated that the land given to the respondents for the land in dispute was located in Taraf Amir Khan. As regards the documentary evidence, the deceased ‑ tendered five documents, comprising copies of the Revenue Record. These are pedigree‑tables,, Parcha Zamindaran Ishtamal Arazi village Botar, another Parcha Zamindaran Ishtamal Arazi, Fard Intekhab Arazi village Botar for 1913‑14 and still another Parcha Zamindaran Ishtamal Arazi. These documents were exhibited as P.1 to P.5, respectively. On the paper book there is also copy of "Andraj Akhir Jamabandi" for 1946‑47, which does not seem to have been exhibited. In Exhs. P.1, P.2 and P.3 and the copy of Andraj Akhir Jamabandi for 1946‑47, there is an entry of "Taraf Amir Khan".

9. The question is whether this evidence is sufficient to establish the requirements of sub‑clause "secondly" of clause (c) of section 15 of the Pre emption Act, which is reproduced below:‑‑‑ "Subject to the provisions of section 14 of the right of pre‑emption in respect of agricultural land and village immovable property shall vest‑‑ (c) Firstly, . ......................................................................... Secondly, in the owners of the Patti or other sub‑division of the estate within the limits of which such land or property is situate." The test of a separate sub‑division laid down in 142 P.R. 1905 is:‑‑‑ "There must be some one or more well defined attributes to justify treatment of a section of the village, as a sub‑division, as for instance, homogeneity of area or descent of the proprietors, and in determining the point, the first thing to be looked to, is the history of the village, so far as it can be ascertained from the Settlement Record:' According to the rule laid down in Parbhu v. Shamsud Din and another AIR 1948 Lah. 199, in order to find out whether a particular Patti or a sub‑division of a Patti was recognised sub‑division of the village, a reference must be made to "Kafiayat‑e‑Deh". In Ram Partab v. Kishen Singh AIR 1937 Lah. 32 though the Settlement record made mention of two Pattis, of which there were separate Lumberdars yet in absence of homogeneity of area or descent these factors were not considered as conclusive to treat Pattis as distinct entities. Again in Raja Painda Khan and others v. Sardar Kahan Singh and others AIR 1937 Lah. 703 the constitution of the "Tarfs" in the village lacking homogeneity of area or descent were not held as sub‑divisions of the village and were treated to have been created only for fiscal purposes. The Division Bench of the Lahore High Court in Gul Muhammad and others v. Sadar‑ud‑Din and others PLD 1951 Lah. 437, while determining whether a particular Patti or sub division was a recognised sub‑division of the village, after an exhaustive examination of the case‑law on the subject maintained:‑‑‑ "From a careful perusal of the large number of cases, discussed above, it will be perfectly clear, that the mere word "Patti", whether in the record or otherwise, did not by itself establish a "sub‑division" of the village to which reference is made in the Punjab Pre‑emption Act. A Patti may or may not be a "sub‑division" and it shall be determined, on the history of the village, the homogeneity of area or of descent. The Legislature has nowhere laid down, that the word "Patti" should immediately be taken to mean a separate "sub‑division". It appears to have been made by way of illustration. Where a village is proved to have been divided into distinct and separate entities, be they known as Tarafs, Patinas or Pattis, each. of the entities, shall be called a "sub division" within the meaning of clause (c) of section 15 of Punjab Pre emption Act of 1913." This judgment as well as the one in Ram Partab's case were quoted with approval of this Court in Wazir Din's case referred to in the impugned judgment, to hold that for the purposes of section 15(c), secondly the word "Patti" whether in the record or otherwise by itself does not establish a sub division of the village. The case‑law is consistent on the point that mere creation of sub‑division for collection of land revenue is not enough for determining the true character of Patti pr sub‑division. In contemplation of section 15(c), "secondly" a Patti or sub‑division must possess well defined attributes i.e. homogeneity of area or descent of the proprietors of the village. It is clear to us that the appellant neither relied upon Kafiayat‑e‑Deh, nor Settlement Record, nor in his evidence he made any reference to the history of the village depicting tribal bond by descent in the owners of Patti Amir Khan or homogeneity of area thereof. He merely placed reliance upon the entries in the Revenue Record which could hardly be accepted as sufficient to discharge the onus of proof placed on him. None of the Courts below other than the L.PA. Bench looked into the basis of Patti Amir Khan to find out whether or not it bore the essential attributes of a distinct Patti or sub‑division of village Botar. The impugned judgment conforms to the requirements of law and we uphold the same. Resultantly, this appeal is dismissed, but the parties are left to bear their own costs. AA./R‑214/S Appeal dismissed.