P L D 2006 Supreme Court 594 (PLP)

KHALIL-UR-REHMAN RAMDAY, J.

The predecessor-in- interest of the respondents, namely, Ghulam Qadir Khan filed a suit to pre-empt the sale of 18 Kanals and 10 Marlas of land situated in village SODHA of District Bahawalnagar. The said suit was decreed by a learned Civil Judge at Bahawalnagar camp at Chishtian. The appeal filed by the vendees-petitioners was dismissed by the learned District Judge of Bahawalnagar and the same was the fate met by R.S.A. No.94 of 1971/BWP which was dismissed by the Lahore High Court on 15-12-2000.

2. Hence this petition by the vendees.

3. It was the case of the vendees from the very outset that the suit-land was a Ghair Mumkin Tibba; that the same was urban immovable property; that it was being used for residential purposes where majority of the labourers and others had constructed their residential houses and that it had a metalled road and an over-head water tank which supplied water to Chishtian city.

4. Muhammad Kabeer (D. W.1) declared that the suit-land was located in a residential area; that the vendees had constructed houses thereon; that there was a metalled road passing through the said land and that an over-head water tank of Municipal Committee supply water to Chishtian city was also located there, that the land in question falling in village Sodha was adjacent to Chak No.4 in which Chak a sugar mill stood set up and which Chak was adjacent to Chishtian Mandi and that labourers and others had their residential houses in and around the suit-land. To the same effect was the statement made by Dur Muhammad (D.W.2). Evidence was also led by the vendees to establish that they had constructed their residential houses in the suit-land and were living there. Muhammad Shafi Patwari (D.W.8) and Ali Ahmed Patwari (D.W.9) also entered the witness box and stated that the land was Ghair Mumkin Tibba and that no consolidation proceedings had ever been taken up in the said land. Some witnesses also appeared on behalf of the vendees who had constructed the residential houses for the said vendees and from whom the building materials had been purchased by them for the said purpose.

5. It was admitted by Ghualm Farid (P.W.3) appearing for the pre-emptor that electricity was available near the suit-land which also had a metalled road and quite a few houses stood constructed in village Sodha where people had taken up their residences. Ghulam Qadir pre-emptor appeared as P.W.5 and admitted, while under cross-examination, that the suit-land had not been cultivated at all for at least three years prior to the year 1970. He also admitted that an over-head water tank for supplying water to the city of Chishtian was located in the suit-land; that a metalled road also existed there and that the suit-land had got inhabited by the people. He also admitted that the land in question measuring 18 Kanals and 10 Marlas had been purchased by 11 persons who were then living in the houses constructed in the suit-land.

6. What then appears from a resume of the evidence led at the trial by both the parties is that the suit-land was Ghair Mumkin Tibba, that a metalled road existed in the said land; that the same was in close vicinity of Chistian city: that an over-head water tank stood constructed in the suit-land; that a sugar mill existed in the close vicinity of the said land; that the land in village Sodha was being used for residential purposes by a fairly large number of labourers and others; that the suit-land measuring a little over 18 Kanals was being shared by at least 11 vendees meaning thereby that each vendee had a little over one Kanal of land for himself; that such small pieces of land could not have been purchased for agricultural purposes nor could the same be used as such; that the vendees had constructed Jhugees and Kothas on the suit-land where they had taken up residence and were living there and that village Sodha in which the suit-land was located had not been subjected to consolidation proceedings.

7. These are then the features and the factors pertaining to the land in question which had been purchased by the vendees which sale had been pre-empted by Ghulam Qadir plaintiff. The crucial question which requires determination is whether the suit-land could qualified as `Urban Immovable Property' thus being immune from pre-emption.

8. The provisions of subsection (3) of section 3 of the Punjab Pre-emption Act, 1913 which Act regulated the pre-emption of sales at the relevant time, read as under:-- "(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 A by notification in the official Gazette, or (b) if so found by the Courts." (Underlining is ours)

9. It would thus be noticed that `urban immovable property' did not mean only that immovable property which fell within the limits of a town and that it was open to the Courts of law to declare any property to be urban immovable property even if the same fell outside the limits of a town provided there were facts and circumstances warranting such a finding.

10. Having perused the entire evidence which has been noticed above, we find that the suit-land had all the characteristics of urban property which pieces of evidence available on record appear to have escaped the notice of all the three learned courts including the Hon'ble High Court. The above noticed facts and circumstances available on record are a definite indication of the fact that the suit-land was nothing other than urban immovable property and we hold accordingly.

11. Consequently, this petition is converted into an appeal which is allowed as a result whereof all the three judgments and decrees impugned before us and passed in favour of the respondents are set aside as a further consequence whereof the suit filed by Ghulam Qadir pre-emptor ,is dismissed with costs throughout which costs are fixed at Rs.50,000 (rupees fifty thousand only). M.B.A./M-109/S Appeal allowed.