P L D 1988 Peshawar 13 (PLP)

Mahfooz Khan for respondent. Date of hearing: 2nd November, 1986. As these revision application involve a common question of fact and law, I propose to dispose them of by this one judgment. The suit land measuring 3 kanals and 3 marlas is comprised in Khasra Nos.902/279, 904/282 and 915/280. Sardar Shah, Nawaz Shah and Liaqat Hussain Shah sold it to Haji Fazal Mohammad, Fida Mohammad and Haji Gul Rahim by means of mutation No. 5045 attested on 11-1-1978 ostensibly for Rs.4,48,

080. On 20-9-1978, Malik Nazar Mohayuddin (the contesting respondent herein) challenged the sale transaction of the suit land in pre-emption suit on the basis of contiguity, participation in the immunities and appendages. While the suit was pending, the pre-emptor came to know that Haji Fazal and Fida Mohammad, has also sold 1 kanal to Dr. Abdul Jalil (Petitioner in Civil Revision No.395/85) through mutation No.5161 attested on 7-3-1978 and 11 marlas to Haji Jaber Gul through mutation No.5239 attested on 24-4-1978 and so Haji Jaber Gul had sold the said 11 marlas to Dr. Abdul Jalil by means of mutation No.5728 attested on 11-4-1979, while Zafrullah and Amjad Naveed respondents had re-sold 11 marlas to Ghazanfar, Suhail, Asif Suhail, Khalid Mustafa and Ghulam Mujtaba (petitioners in Civil Revision No.422/1985). The pre-emptor, therefore, sought amendment of the plaint to implead the subsequent vendees as defendants, which was allowed. The suit was contested between the parties. Upon the pleadings of the parties, the learned trial Judge framed various issues and recorded their evidence thereupon. On examination of the evidence, he found in favour of the respondent and decreed his suit on payment of Rs.2,08,662.93 as sale consideration- of the suit land, vide his judgment dated 28-10-1984. The petitioners challenged the judgment of the learned trial Judge in two separate appeals before the appellate Court and a learned Additional District Judge who heard the appeals concurred in the findings of the learned trial Judge and dismissed the appeals, vide his judgment dated 14-5-1985. Hence these two revision applications. Learned counsel for the parties have mainly confined them arguments to issue No.11 which may be reproduced:- "Whether the plaintiff has the superior right of pre-emption?" The two Courts below found that Khasra No.915/280 is Shamilat-i-Deh in which the respondent is owner and as this khasra number is contiguous to the suit land, the pre-emptive right of the respondent, according to the two Courts below, is established. In support of this conclusion, the two Courts below relied upon the statement of the Patwari. By going through the evidence on record, I feel that the two Courts below have not examined the evidence on record in its proper perspective. It is conceded that the land in Khasra No.915/280 was owned by evacuee who had purchased the same long before Partition of the Sub-Continent. It is also conceded that the water channel is also a part of Khasra No.915/280. Thus, the only inference that can be drawn is that the evacuee had purchased the entire khasra No.915/280 and for that matter the evacuee became co-sharer in the water channel, which is a village shamilat. On the exodus of the evacuee after partition, ownership of the land comprised in khasra No.915/280 vested in the Central Government and in the events that happened the land in this khasra number was transferred to Mian Khadim Shah who remained in its exclusive possession. Thereafter, the entire khasra number was transferred to various persons from time to time until it was purchased by the present petitioners through the impugned sale transactions. Analysed the evidence in this direction it is obvious that the respondent could not be held as owner of khasra No.915/280, of which the water channel is a part, since as long ago as the evacuee purchased the same before partition. Furthermore, even if it is assumed that the respondent is co-sharer in the water channel anywhere else, yet legally he cannot) be allowed to lay his claim of pre-emption on the basis of it unless he has taken a plea to that effect in the plaint or in the replication. Learned counsel for the respondent conceded that his client has not taken any such plea. Now it is a settled law that in a pre-emption case, the pre-emptor must specifically disclose the qualifications on the basis of which he claims the right of pre-emption to the suit land. Reference in this behalf may be made to an authority reported in A I R 1936 Lahore 35 in the case of Sat Narian v. Pheroze Behramji and others. As the respondent /pre-emptor in this case has not specifically disclosed in the plaint that he is co-sharer in the water channel, he cannot succeed in his claim of pre-emption merely on the ground of contiguity which is obviously a vague ground. There is one more feature emanating from the evidence on record, which clinches the matter against the respondent. In the past, the suit land was an agricultural land but presently it seems to be covered by Abadi and has changed its nature and character. The case set up by the petitioners is that the suit land is now situate within the Municipal area and is no more used as agricultural land. It has come on record that the land in the area has been split into plots for residential purposes. This aspect of the case is also admitted by the Patwari in his evidence. He stated in cross-examination that he suit land is situate on Peshawar-Charsadda Road near Eid Gah Now the fact cannot be disputed that the land situate on Peshawar-Charsadda Road near Eid Gah is surrounded by Abadi and is no more fit for agricultural purposes. This being the position, as the suit land has not retained its agricultural character and is now covered by built-up area, the respondent /pre-emptor cannot be allowed to claim that the suit land is an agricultural land and he has the right of pre-emption thereto. A similar question was posed before a Division Bench of the Lahore High Court in the case of Raja Khizar Hayat and others v. Saleh Muhammad reported in P L D 1986 Lahore 242 that case it was held that if the land on the basis of which the plaintiff has claimed his superior right of pre-emption did not have retained its agricultural character, he cannot claim to be an owner of estate and consequently has no right of pre-emption over the land in dispute. It is a matter of common observation and the learned counsel for the respondent did not dispute it that the land in the present case is vulnerable to and is ready for building purposes having lost its previous character as agricultural land. This being the position, the dictum of law laid down in the cited authority squarely applies to the present case and consequently from this angle also the respondent is not entitled to claim right of pre-emption to the suit land. The result is that while setting aside the impugned judgments of two Courts below, I accept this revision application and dismiss the suit of the respondent with no order as to costs. S. Q. /558/P Revision accepted.