1979 PLP 620 (CLC)

This is an appeal from a judgment and decree of Syed Amjad Hussain Bokhari, Additional District Judge, Rawalpindi, dated 10-6-1972, affirming a judgment and decree passed by Sh. Hafeez-ur-Rehman, Civil Judge, Rawalpindi dated 20-12-1971, whereby the appellant's suit for pre-emption was dismissed.

2. The facts of the case are that Hukam Dad sold 14 marlas of land forming 14/219th part of Khasra No. 446/1, situate in the revenue estate of mauza Sohan, Tehsil and District Rawalpindi, to Khalid Rashid respondent, through a registered sale-deed dated 7-1- 970, ostensibly in consideration of Rs.7,

000. The appellant Mst. Zaibunisa filed a suit to pre-empt the sale on the ground that she being the daughter of the vendor had a superior right of pre-emption under section 15 of the Pre-emption Act. She also asserted in her plaint that the sale had actually taken place in consideration of Rs. 2,000 and that the market price of the land was also the same. The respondent in his written statement raised a number of pleas, including the plea that the land in dispute was not pre-emptible, because it w s situate within the municipal limits and was a building site. Eight issues were framed in the case, including issues Nos. 2 and 4, which are as follows : (2) Is the suit land not pre-emptible ? O. F`. D. (4) Has the plaintiff a superior right of pre-emption over the vendee/ defendant ? O. P. P. The trial Court found that the property in dispute was urban immovable property, and as such the sale in question could not be pre-empted. On this finding both the issues were decided in favour of the respondent. Learned Additional District Judge however decided issue No. 2 in favour of the appellant, holding that although the property in dispute was urban immovable property, its sale could be pre-empted, provided the right of pre-emption eras claimed under provisions of section 16 of the Punjab Pre-emption Act. He decided issue No. 4 in favour of the respondent, holding that the land in dispute being urban immovable property, its sale could not be pre-empted on any of the grounds mentioned in section 15 of the Punjab Pre-emption Act, including the ground of right to inherit from the vendor.

3. The decision of -this case turns on the question whether the property in dispute is agricultural land or urban immovable property within the meaning of section 3(3) of the Punjab Pre-emption Act which is reproduced below : '" "3(3) 'Urban immovable property' shall mean immovable property within the limits of a town, other than agricultural land. For the purposes of this Act, a specified place shall be deemed to be a town .(a) if so declared by the Board of Revenue by. notification in the official Gazette, or (b) if so found by the Courts." The appellant has challenged the finding of the Courts below that the land is urban immovable property. It is submitted that the Courts below have misread evidence on record, and have also ignored material evidence while arriving at their erroneous findings. 4 The land in dispute was sold through registered sale-deed Exh. P-2, in which it is stated that the vendee had purchased the property for building purposes. Saudagar Khan, Municipal Surveyor, Rawalpindi Municipal Committee (D. W. 1), deposed that the land had been included within the municipal area by virtue of notification No. B. D. I/1/109-67. Abdul Qayyum, Lambardar of village Sohan (D. W. 2) made a statement to the same effect, and added that from the date of the notification he had stopped collecting land revenue from the village. The fact that the land in dispute is within the municipal limits, is not challenged by the appellant. Her general attorney, Manzoor Hussain (P. W. 2) had also admitted that the land was situated within the municipal limits. Saudagar Khan, Municipal Surveyor (D. W. 1) also stated that the area in which the land in dispute was situated, had been included in a Development Plan. Learned counsel for the appellant contends that this oral testimony is of no value, because the witness had admitted that the khasra number in dispute, or even the estate in which it is situate, was not shown in the Development Plan which he had brought with him in Court. However non-inclusion of such details in the plan does not detract from the value of the testimony of the witness. Sale Deed Exh. P-2 also shows that there are houses on 3 sides of the plot in dispute, and on ,4 one fide there is also a street. In view of the above evidence it is to be inferred that the area has the characteristics of being a part of a town, despite the fact that D. W. 2 admitted that agricultural lands of Nawab and Fazal Dad were adjacent to the land in dispute.

5. The case of the appellant however is that the land is agricultural. Reliance is placed in this behalf on khasra girdawari Exhs. P-4 and P-5, and Jamabandi Exb. P-3. The entries in Jamabandi do raise a presumption of truth, but the presumption is rebuttable. On the other hand no presumption of truth attaches to entries in khasra girdawaris. Exh. P-4 and Exh. P-5 show that in Khasra No. 441/1, 9 kanals of land was under cultivation of Hukam Dad in Kharif 1970 and Rabi 1971, and 2 kanals of land was ghair mumkin makan. There is nothing in these documents to suggest that the 14 marlas of the land in dispute was under cultivation. In any case the entries are obviously incorrect because the land in dispute bad been purchased by the respondent through sale-deed Exh. P-2, dated 7-1-1970, in which it is stated that the possession of the land had been delivered to the vendee, It is not the case of the appellant that despite the sale, possession had remained with the vendor. In these circumstances, no reliance can be placed on the entries in the khasra girdawaris. The appellant has not produced any document to show that on 7-1-1970, the land was being used for 4gricultural purposes. There is no reason to upset the concurrent finding of fact arrived at by the Courts below that the land in dispute is urban immovable property. The finding has been arrived at by appreciating the entire evidence which is on record. Jamabandi Exh. P-3 relates to the year 1965-66, and not to the period when sale had taken place. It cannot show that the land was being used for agricultural purposes even in the year 1970. The appellant therefore could not have pre-empted the sale on the ground that she was the daughter of the vendor.

6. There is, therefore, no merit in this second appeal, which accordingly is dismissed with costs. Appeal dismissed.