P L D 1961 (W (PLP)

Sardar Muhammad Iqbal for Respondent. Date of hearing : 16th November 1960. BASHIR AHMAD, J.‑This is an appeal by the defendants arising out of a suit for pre‑emption of a site, measuring 30 marlas, bearing khasra No. 49, situate in Mehmeda Gharbi in the District of Gujrat, ostensibly purchased by them, according to the registered sale deed dated the 5th of April 1952 for a sum of Rs. 3,

000. Muhammad Sharif, the plaintiff, claimed a superior right of pre‑emption on the ground that he was a joint owner in the same khata and an owner in the village where the site is situated. The appellants, it was alleged, were neither co‑sharers in the khata nor owners in the village. The trial Judge dismissed the suit holding that the site in dispute was within the municipal limits of Gujrat and was no longer part of village immovable property within the meaning of the Punjab Pre‑emption Act. The learned District Judge on appeal reversed the finding and held the site in dispute as village immovable property, and since the parties were agreed that the plaintiff was entitled to a decree on that finding, his right of pre‑emption being admittedly superior to that of the vendees, decreed the claim. The present appeal is directed against that decree.

2. The learned counsel for the appellants has argued that on the findings of the learned District Judge on facts he has misdirected himself in law in holding that the site in dispute forms part of village immovable property. It is urged that by a notification issued in November 1941, the area of village Mehmeda Western was included within the municipal limits of Gujrat and there is no longer any dispute about it. On one side it is about a mile from the proper city and on the other side the District Courts are at a distance of nearly three furlongs. The Govern ment has built houses in its vicinity. The Municipal Committee has metalled the lanes, laid drains and fixed electric lamp posts for lighting the streets. The built‑upon area is occupied by Government employees, artisans and residents of other villages. These facts, it is contended, establish the urban character of the locality. In this context an examination of a few authorities cited at the bar seems necessary.

3. In a case reported as Salamat Rai v. Kanshi Ram (45 I C 887) a Single Bench judgment by Chevis, J. it was stated that the mere fact that Premgarh was included within the municipal limits of Hoshiarpur City would not necessarily lead to the conclusion that ft had become a part of the town for purposes of pre‑emption not withstanding the fact that the site in dispute was situate between the Hoshiarpur City and the railway station and shops had also sprung up in the vicinity. The facts are not very clearly stated in this judgment. The‑ point is essentially one to be assessed in the circumstances of each case and if these be the only A facts which have been stated above we are constrained to express the view, with respect, that it is not correctly decided.

4. The second case is reported as Shankar Das v. Mathra Das and another (55 I C 520). The Letters Patent Bench merely affirmed the conclusion of Martineau, J. on the finding that it was always a difficult point to decide whether a locality was a town or a village for the purpose of pre‑emption, and since a Single Bench of the Court had taken a decision on consideration of the evidence, they did not feel inclined to interfere. Martineau, J. in his judgment had defined "town" as "an area inhabited by residents not bound together by a common interest in agriculture, that is, a place which depends mainly on trade ; while a village meant the area occupied by a body of men mainly dependent upon agriculture or occupations subservient thereto". The learned Judge in affirming the rural character of Padhana took into account the circumstances that Padhana was constituted a notified area in 1895 and it was described as a town in the notification issued under section 210 of Act XX of 1891. In a book of geography prescribed by the Education Department for teaching in Primary schools the place was said to be a town. There were in Padhana anamber of pacca houses, and shops, and paved streets, Vernacular Middle School and also a branch post office. In a judgment delivered in 1898 the Divisional Judge had found it a town though Mr. Ellis in 1913 held against it. On these facts the learned Single Judge reached the conclusion that the urban character of the place was not established. We would have found it difficult to arrive at this finding, although the decision was affirmed by the Letters Patent Bench. In fact the Letters Patent Bench dismissed the appeal, in recognition of the difficult nature of the question involved, and did not independently address itself to the question as to what the manner of correct approach should be.

5. In Sheikh Abdul Rahman and another v. Khan Sahib Haji Rashid Ahmad (A I R 1937 Lah. 182), a Division Bench of the Lahore High Court, formed by Addisin and Din Muhammad, JJ., laid down the following test, for determining whether a property is to be treated as urban or rural in character :‑ "(1) That the mere fact that a rural area is included within the limits of a town is not conclusive as to the urban character of the area in question ; (2) that the rural area may lose its pre‑existing character and be then absorbed in the urban area ; (3) that the inclusion of a rural area within the municipal limits of a town is an important factor to be considered in determining the character of the area in question ; (4) that each case is to be judged on its own merits". Applying these tests to the case before them, their Lordships considered the property to have lost its rural character by reason of the fact that it was included in the Municipal Committee and the land in the vicinity had been converted into building plots and there were other factories in existence quite close to the site in dispute. It was also found that the old village site was occupied by people not belonging to original village community. We are in respectful agreement with the view expressed in this case.

6. The fourth authority cited by the learned counsel was Diwan Chand v. Nizam Din and others (1924 Lah. 662). This is a judgment by a Letters Patent Bench comprising of Shadi Lai, C. J. and Le Rossignol, J. which affirmed the view that the expression "village" connotes ordinarily an area occupied by a body of men mainly dependent upon agriculture or occupations subservient thereto. When they are occupied by persons who are engaged mainly in commercial pursuits rural areas in the vicinity of a town grow into a suburb of the town. Such areas are governed by rules applying to urban properties. This concludes the cases cited to us by the learned counsel who argued the case for the respondents.

7. It remains only to examine the case in the light of the tests established by judicial authority. We consider an inspec tion of the place as very helpful in reaching a correct conclusion. The learned trial Judge very properly visited the site, and affirmed its urban character by dismissing the plaintiff's suit. As observed by him, the site in dispute is surrounded by roads or buildings. In this area buildings have been constructed by the Government which are occupied by the Government employees and there are other buildings in which artisans live. There are metalled roads ; the area has been electrified and electric posts in the streets fixed by the Municipal Committee and the District Courts are at a distance of three furlongs from this place. As stated by the Patwari as P. W. 1, in the gharbi part of Mehmeda, Government servants, artisans and owners from other villages reside. The site is thus obviously situate in an area where people other than the residents of the original village live and they do not follow agricultural pursuits for their livelihood. In the vicinity of the place on the north there is a bungalow‑cum‑office of the Executive Engineer. Applying the tests laid down in Sheikh Abdul Rahman and another v. Khan Sahib Haji Rashid Ahmad, there is little room for doubt that this locality is now a suburb of the town of Gujrat and has to be treated as such. The learned District Judge has drawn a conclusion adverse to the appellants from the fact that there are no schools, hospitals or regular bazaars in this area. But that is so because this area is now an integral part of the town of Gujrat, and the main city itself is hardly a mile away. The distance is not so great as to necessitate a separate provision for this locality. The trial Court had the advantage of having witnessed the site and the locality where it is situate, but the note of the learned trial Judge does not appear to have been noticed in the judgment under appeal. The learned District Judge has dealt with the circumstances in isolation and treating each circumstance as inconclusive reached the conclusion that the property still retains its rural character. This is by no means a correct approach. What is required in these cases is to have an overall picture and then to assess whether the locality retains its rural character or has been absorbed in the town. The fact that some Lambardars live in the vicinity or the land is assessed to land‑revenue are by no means enough circumstances for recording a conclusion that the site forms part of village immov able property. There is a Lambardar in Mozang also. In disagreement with the learned District Judge therefore, we have no hesitation in holding that the site in dispute is no longer a part of village immovable property and that, therefore, the plaintiff had no superior claim of pre‑emption on the grounds alleged by him. The appal is, therefore, allowed, the decree of the learned District Judge set aside, and the plaintiff's suit dismissed with costs throughout. A. H. Appeal allowed.