2006 PLP 1352 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

These connected appeals by leave of the Court, have been directed against the judgment dated 26-3-2001 passed by a learned Judge in Chamber in the Lahore High Court,, Lahore, whereby two separate regular second appeals arising out of a pre-emption suit were partly allowed and case was remanded to the trial Court for decision of superior right of pre-emption inter se rival pre-emptors. Leave was granted in these appeals vide order, dated 30-4-2002 as under:-- "This order` shall dispose of the above two petitions as they are directed against the judgment, dated 26-3-2001 of a learned Single Judge of the Lahore High Court, Lahore whereby he affirmed the finding on issue No.1 holding the disputed land as pre-emptible and remanded the case to the learned Senior Civil Judge, Mianwali, to determine whether the respondents had superior right qua the petitioners. The facts briefly stated are that the petitioners predecessor-in interest (Lt. Col. (Retd.) Muhammad Aslam Khan Niazi purchased the land in dispute measuring 4 Kanals, 2 Marlas in the revenue estate of Ratta Khali, District Mianwali, vide registered sale-deed dated 7-8-1,977.,The respective respondents filed their suits for possession through pre-emption on the basis of their superior right being collaterals, co-owners in the suit-land and owners in the estate. Both the suits were consolidated and issues were framed. The parties led their evidence and the trial Court vide its judgment, dated 27-1-1983 decreed the suit. An appeal was filed by the petitioners and the first appellate Court through its judgment, dated 15-2-1986 maintained the trial Court's decree with a direction to deposit Rs.6,000 extra for registration fee. The petitioners challenged the first appellate Courts judgment through R.S.As. Nos.103 and 104 of 1986, both of which have been remanded to the learned Senior Civil Judge, Mianwali. However, the learned Single Judge of the Lahore High Court affirmed the determination qua the pre emptibility of the disputed land, hence these petitions for leave to appeal. It is inter alia argued by the learned counsel for the petitioners that through Notification No.2280-S issued under section 8(2) of the Punjab Pre-emption Act, 1913, no right of pre-emption existed in Mianwali Town. According to him, this aspect has not been appreciated in its true perspective by the Courts below. Leave to appeal is granted to consider inter alia the above point. Status quo shall be maintained by both the parties till the disposal of the appeals emanating out of these petitions."

2. The learned Judge in Chamber in the High Court having come to the conclusion that the suit-land was pre-emptible, remanded the case to the trial Court only on the limited question for determination of the superior right of pre-emption inter se the rival pre-emptors whereas in the present petitions it has been contended with vehemence that the suit-land was not subject to the law of pre-emption. The claim of the pre-emptor respondent herein, was that notwithstanding the issue of notification under section 8(2) of Punjab pre-emption Act, 1913 and notification issued under Punjab Local Government Ordinance, 1979, the suit-land was not exempted from law of pre-emption whereas the assertion of petitioner was that the land being situated in Mianwali Town, was exempted from the operation of law of pre-emption by virtue of the notification dated 18-7-1918 issued under section 8(2) of the Punjab Pre-emption Act, 1913 and in support of the respective contentions, the parties relied upon oral and documentary evidence. Learned counsel for the respondents placing reliance on Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159, contended that without specific proof of non-existence of right of pre-emption, mere inclusion of 'an area in the Municipal limits would not be sufficient to exclude the sale of agricultural land in the said area from law of pre-emption and vendees in the present case without bringing any evidence on record to show that the suit-land acquired the status of urban immovable property, claimed exemption of law of pre-emption. Learned counsel argued that mere issue of a notification under section 8(2) of Punjab Pre-emption Act, 1913 in respect of a local area or issue of a notification under the Municipal Law for fixing the boundaries of Municipal area for the purpose of Local Government would not as such be an evidence of change of character of agricultural land falling within the Municipal limits or that agricultural land stood exempted from operation of law of pre-emption.

3. The learned counsel for the petitioner on the other hand, on the basis of the notification issued under section 8(2) of Pre-emption Act, 1913 argued that there was no ambiguity regarding the exemption of law of pre-emption in respect of the land situated within the limits of Mianwali Town or Municipal Committee Mianwali.

4. We having heard the learned counsel for the parties, have found that the real question requiring decision to resolve the issue would relate to the determination of the boundaries of Mianwali Municipal Committee and Mianwali Town. The notification issued regarding the inclusion or exclusion of an area from the local limits under the law governing the Local Government may be relevant to determine the character of land situated in the Municipal areas but in consequence to such notification, agricultural land is not ipso facto exempted from the operation of pre-emption law unless a separate notification under the Pre-emption Act is issued. The right of pre-emption in the area of Mianwali Town was extinguished vide notification dated 8-7-1918 issued under Pre-emption Act, 1913 but no evidence was brought on record showing the boundaries of Mianwali Town at the time of issue of notification in question and unless the correct factual position regarding the limits of Mianwali Municipal Committee and Mianwali Town, would have ascertained the question relating to the pre-emptibility of suit-land could not be properly determined.

5. The learned counsel for the parties have not been able to satisfy us from the existing record that the limits of Mianwali Town and the C Municipal Committee Minawali were same or not and whether the right of pre-emption in the area of suit-land was or was not in existence at the time of sale. The right of pre-emption in respect of the land situated in Mianwali Town was certainly not exercisable after the issue of notification, under section 8(2) of the Punjab Pre-emption Act, 1913, but the matter relating to the limits of Mianwali Town and the true character of property being purely question of fact, was not properly appreciated, therefore, we consider it necessary to send the case back to the trial Court for proper determination of the mixed question of law and fact relating to the pre-emptibility of suit-land.

6. In the light of foregoing discussion, we without further dilating on the matter, set aside the finding of the High Court on the issue relating to the pre-emptibility of suit-land and send the case back to the trial Court for fresh decision of Issues Nos.1 and 3 in the suit in accordance with law. The parties shall be allowed to produce additional evidence in support of their respective stance on the issues regarding the pre-emptibility of suit-land and the superior right of pre-emption. These appeals in the above terms are allowed with no order as to costs. M.B.A./J-7/SC Order accordingly.