1982 PLP 1643 (CLC)

This civil revision, arises from the judgment and decree of learned Additional District Judge‑II, Muzaffargarh whereby he on 14th May, 1979 dismissed the appeal filed by the plaintiffs/ petitioners against the judgment and decree dated 22nd June, 1977 of the learned Civil Judge IInd. Class, Muzaffargarh who had dismissed the pre‑emption suit filed by the plaintiffs/petitioners against the defendants/respondents regarding 1 kanal of land situated in Mauza Muzaffargarh.

2. The plaintiffs/petitioners had claimed a superior right in terms of section 15 of the Punjab Pre‑emption Act. The respondents resisted the suit and pleaded that the suit land being urban immovable property, the plaintiffs/petitioners' right was not superior. The learned Civil Judge framed the following nine issues (1) Whether the description of property in dispute is incorrect ? OPD (2) Whether ‑ the property in dispute is urban immovable property ? OPD (3) If issue No. 2 is proved in affirmative whether custom of pre emption prevails in the locality ? OPP (4) Whether the suit is not for the benefit of minors ? OPD (5) Whether the plaintiffs have superior right of pre‑emption ? OPD (6) Whether a sum of Rs. 3,000 was actually paid or bona fide fixed ? OPD (7) If not what was the market value of the suit land ? OPP (8) Whether defendant spent Rs. 500 on expenditures of mutation, if so, how far he is entitled ? OPD (9) Relief. His finding on issue No. 9 is that since the suit land‑ was within the limits of town, therefore superior right in terms of section 16 ‑of the Punjab Pre‑emption Act has been proved. The plaintiffs/petitioners filed an appeal and his appeal too was dismissed and the findings of the learned Civil Judge on issue No. 5 was affirmed. The learned counsel submits that `the nature of property for the purpose of right of pre‑emption is to be determined in the light of sub section (3) of section 3 of the Punjab Pre‑emption Act. Both the lower courts have wrongly declared it as an urban immovable property. The findings of both the lower Courts are based on conjectures and supposi tions. The agricultural land does not cease to be as an agricultural land simply because it has been written as "Ghair Mumkin". Without notifi cation of Board of Revenue under subsection (2) of section 8 the right of pre‑emption cannot be taken away merely on the point that this disputed land situates within the limits of Municipality. 4. 1 have considered the arguments of learned counsel and am of the view that the point whether the site in respect of which a right of pre‑emption is claimed is village immovable property or urban immov able property so as it be pre‑emptible by statutory claimants Any orders under section 15/16 of the Punjab Pre‑emption Act is essentially one to be assessed in the circumstances of each case. The site of the place itself would be very helpful in reaching the conclusion. In this case it is found that the suit land is situated near Commercial Institute and was on Muzffargarh‑Ghazi Khan Road, where a Jute Mill and Government Comprehensive High School fall on two sides and that according to Exh. D 1, Kandawala where the suit land is situated falls within the A limits o f Municipal Committee Muzaffargarh and that the suit land had assumed urban colour. This finding of the learned Civil Judge was upheld by the learned appellate Court. I am of the opinion that the locality did not retain its rural character and has been observed as a town and is thus not pre‑emptible in the terms of section 15 of the Punjab Pre‑emption Act. I find that both the learned Courts below have exercised their jurisdiction legally and properly, and it is not a fit case for interference under section 115, C.P.C. The petition is dismissed in limine. M Y H. Revision petition dismissed.