P L D 2001 Supreme Court 438 (PLP)

Nemo for Respondents (in all C.As.). Date of hearing: 27th November, 2000. MUHAMMAD BASHIR JEHANGIRI, J.‑‑‑This order will govern Civil Appeals Nos. 1526, 1527, 1528, 1529, 1530 and 1531 of 1995 as they are directed against a common judgment dated 16‑4‑1994 passed by a learned Single Judge of the Lahore High Court, while disposing of six civil revisions, namely, Civil Revision Nos.1749/D, 1750/1), 1751/D, 1752/D 1753/1) and 1754/1) of 1984. All the six appeals are with the leave of the Court granted by this Court on 31‑10‑1995.

2. The only question for consideration in all these appeals throughout the litigation addressed by the two Courts below has been whether the property in dispute measuring 5‑1/2 Marlas was Urban Immovable Property within the contemplation of section 3(3) of the Punjab Pre‑emption Act (I of 1913), (hereinafter called as the Act). "Urban Immovable Property" has been defined in section 3(3) of the Act is as under: "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. "

3. On this question, the learned trial Judge found that the property sold had acquired urban character and was, therefore, exempt from pre‑emption. In reaching this conclusion, the learned trial Judge placed reliance on Allah Bakhsh v. Ilahi Bakhsh and 3 others PLD 1975 Lah.

359. The six pre emption suits filed by the pre‑emptors were thus dismissed on this score on 6‑6‑1984. In six separate appeals, filed by six plaintiffs‑pre‑emptors, the learned District Judge reversed the judgment and the decree of the learned trial Court and instead decreed the suits for pre‑emption vide order dated 30‑9‑1984, holding that the property sought to be pre‑empted was village immovable property. In this context reference was made to the judgment of the Lahore High Court reported as Rahim Bakhsh v. Wahid Bakhsh PLD 1979 Lah. 544.

4. The only point that survived in the civil revisions giving rise to the titled appeals was: "whether the land had acquired the, status of urban immovable property or it was part of village immovable property for the purpose of the Punjab Local Government and Social Welfare, 1975 (since repealed). The learned Judge in Chambers of the Lahore High Court observed that admittedly the location of the land in dispute did not fall within the municipal limits of Gojra; that the place was also neither declared as a town for the purposes of pre‑emption nor was it ever found to be a town by the Courts in the remote or immediate past. According to the learned Judge, the alienated parcels of land measuring 5/ 5‑1/2 Marlas of land were forming part of the Chak the classification whereof at the time of this sale was described as Nehri in an extract Exh.P.4 from Register Khasra Girdawari. It was also noted that Ata Muhammad had sold small pieces of fig r and five and half Marlas to the vendees through separate sale‑deeds, which was obviously for residential purposes. The evidence was referred to reach the conclusion that a residential colony had sprung up in Square No.6 of the Chak but this factor by itself was not enough of a reason to hold that the properties sold were in the nature of urban immovable properties. According to the learned Single Judge, the Chak still retained its pastoral character and the people residing in it had not shed off their agricultural pursuits. With reference to the ratio enunciated by this Court on the proposition on which leave has been granted, reference was made to the two judgments of this Court: (i) Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and reiterated in (ii) Abdul Haq and 4 others v. Sardar Shah and others 1994 SCMR 1238). Having regard to the factors as noted above, all the six civil revisions were found to have no merit in them and in consequence were dismissed. Hence these appeals.

5. Leave to appeal to all these appeals was granted to consider whether the property in dispute was urban immovable property.

6. Mian Ghulam Rasool, learned A.S.C. appearing on behalf of the pre‑emptors‑appellants, conteded that the land in question had been included in Municipality of Gojra in 1975 vide Notification No.SO‑IV(LG) SGI(83)/70 issued by the Board of Revenue, Punjab placed on the file of Civil Appeal No.1526 of 1995 at page 74 which, according to the learned counsel, substantiated the plea of the vendees that the land was purchased for residential purposes and that the evidence of the ?.Ws. and the D.Ws. also proved that the suit property was situated in a residential colony of a town known as Qadir Colony. It was further submitted that the land was sold in small pieces of land of five and five and a half Marlas which goes a long way to prove that it was for the residential purposes and further that the land had lost its pre‑existing character since long. Reference to the Khasra Girdawari was made to contend that no crops were sown in the disputed land for long, were lying fallow and were thus, exempt from pre‑emption.

7. The respondents did not enter appearance and had been placed ex pane in the Office.

8. The proposition to be addressed at the outset is whether the disputed property in all the appeals has been in fact notified to be within the municipal emits of Gojra Municipality, District Faisalabad. The notification declaring the extension of certain properties under clause (d) of section 9 of the Punjab Local Government Act, 1975 (XXXIV of 1975) (since repealed) (hereinafter called as the Act) was not produced before the learned two Courts below and, therefore, it could not have been produced for the first time in this Court. We have taken notice of the fact that this Notification was never produced either before the learned two Courts below or even in the High Court, therefore, production of this notification at this belated stage in appeal before this Court is legally not warranted. We have minutely perused the notification dated 16‑5‑1975 issued by the Government of the Punjab in the Local Government and Social Welfare Department issued in exercise of the powers conferred by clause (b) of section 9 of the Punjab Local Government and Social Welfare Act, 1975. It would thus be seen that this is not a Notification issued under section~3(3) of the Act declared by the Board of Revenue by Notification in the official Gazette that the disputed immovable property falls within the limits of Gojra Municipality. In any case a minute perusal of the Notification would reveal that in the Notification referred to above, none of the disputed properties are identifiable with the properties described in the Schedule to the Notification. No doubt the only one disputed property falls within Chak No.371‑JB on the western side so far as the Notification (ibid) is concerned. But then the squares notified to be part of Gojra Municipality were Square No.21 of Chak No.371/JB and Ula No.25 of Square No.20 of Chak No.371‑JB but on the other three directions, north, east and south even the Chak numbers are different in the .Notification, namely, Chak No.296‑JB, Chak No.365‑JB and Chak No.366‑JB muchless than the identity of Square numbers and Killa numbers which are absolutely different. It would thus be seen that even this notification has got no nexus with the notification within the contemplation of section 3(3) of the Act. The disputed properties having not been included in Gojra Municipality could not, therefore, be held to be exempted from pre‑emption.

9. The learned District Judge, Toba Tek Singh, while reversing the finding of the learned trial Judge that the disputed property lost its character as an agricultural land observed as under:‑‑ "After perusing the record with the assistance of the learned counsel representing .the parties and going through the case‑law cited by them, I am of the opinion that the suit‑property, though in the form of a residential plot, still retains its agricultural character because it is neither situated within the municipal limits nor it has ‑any other facility like metalled road, electricity or drainage system and sanitation being looked after by the regularly employed sweepers. In the ruling relied upon by the learned counsel for the defendant respondent, the portion which has been reproduced by the learned 'trial Judge in the body of the judgment it was held that the evidence on the record amply showed that the land was situated within municipal limits and the locality had metalled road, drainage system and sweepers of the municipal committee cleaned the streets and Civil Courts were visible therefrom and as such it had acquired urban character and the mere fact that it was still described in the Revenue Record arid in the sale‑deed as agricultural, did not make it non‑urban. The authority is not applicable to the fact of this case, rather it goes against defendant‑respondent and favours the contention raised on behalf of the plaintiff‑appellant. The learned trial Judge, has, therefore, wrongly relied upon it."

10. The above findings have been concurred in by the learned Judge in Chambers in the above civil revisions. Although the extract from Khasra Girdawari Exh.P.4 has not been placed on the file but it has been noticed by the learned Judge in Chambers of the High Court that the disputed land formed part of a Chak; that character of the land at the time of its sale was described as Nehri in an extract from the Register Khasra Girdawari Exh.P.4. 1t was conceded that a residential Colony has sprung up in Square No.65 of the Chak but this factor by itself was not taken to be sufficient to establish that the property sold had attained the nature of an urban C immovable property. It was further observed by the learned Judge that there was no evidence to show the distance of the land in dispute from the Gojra Municipal limits. The factors enumerated in the judgment of this Court in the c se of Nagir Abbas (supra) and reiterated in Abdul Haq and 4 others (supra) were also found missing on the record and it was held that these authorities could not be invoked in support of the proposition.

11. We have gone through the two authorities of Nasir Abbas and of Abdul Haq and 4 others (supra) and find that the factors enumerated therein were missing in the case in hand. In the latest case of Abdul Haq and 4 others (supra) referred to by the learned Single Judge in the impugned judgment had reiterated the factors for deciding the character of the disputed property. We have also considered these factors and have come to the irresistible conclusion that the findings recorded by the learned District Judge p on the above clause and concurred with by the learned Judge in Chambers do not suffer from any infirmity as to warrant interference by this Court.

12. In the light of what has been observed above, the appeals fail and, therefore, they are dismissed. However, there shall be no order as to costs. Q.M.H./S‑91/S Appeals dismissed.