1994 PLP 1238 (SCMR)

AJMAL MIAN, J: ‑‑This is an appeal with the leave of the Court against the judgment dated 15‑11‑1989 passed by a learned Single Judge of the Lahore High Court in Civil Revision No.122/D of 1982, fled by the appellants against the judgment/decree dated 27‑7‑1982 of the learned Additional District Judge, Rahimyar Khan, whereby he allowed respondent No.1's appeal and decreed the suit for pre‑emption of the suit land by reversing the dismissal judgment of the learned Civil Judge, Sadiqabad, dated 1‑7‑1979, dismissing the same and maintaining the above appellate judgment/decree. Leave to appeal was granted to consider, whether the findings on the questions of limitation and the character of the land were contrary to the documentary and other evidence on the record

2. The brief facts are that the present five appellants purchased the suit land through mutation dated 20‑2‑1981, attested on 8‑9‑1981 for ostensible price of Rs.8;500, the description: of which is given in para. 1 of the plaint, which reads as follows:‑ It appears that respondent No.2 (Muhammad Sharif) filed a suit for pre emption on the ground that he was owner in the estate, whereas, respondent No.1 filed suit for pre‑emption on the ground that he was co‑sharer in the Khata. Respondent No.1's suit was resisted by the appellants, inasmuch as a written statement was filed, in which a preliminary objection as to the limitation was raised. On merits, it was pleaded that the suit land was urban property and not pre‑emptible. The above suit of respondent No.2 (Muhammad Sharif) was also contested on similar grounds.

3. The learned Civil Judge tried the above suits together and framed 13 Issues in the above two suits. After recording evidence and hearing the parties, he dismissed the above suits on the ground that the suit land had lost its character of agricultural land of village immovable property and had attained urban character and,‑therefore, was not pre‑emptible.

4. Against the above judgment/decree, no appeal was filed by Muhammad Sharif, but respondent No.1, Sardar Shah (since deceased), who is now represented by respondents Nos.1(a) to (f), filed Civil Appeal No.142/13 of 1979, which was allowed and respondent No.1's suit was decreed. It was held that it was not proved by the appellants that the suit land had acquired the character of urban property. On the question of limitation, the learned Additional District Judge also recorded his finding against the appellants. Thereupon, the appellants filed above civil revision, which was dismissed through the judgment under appeal and the above two findings of the learned Additional District Judge on the above two questions were concurred with by the learned Judge in Chamber. After that, the appellants filed a petition for leave to appeal, which was granted to consider the above questions.

5. In support of the above appeal, the first contention of Mr. Abid Hassan Minto, learned counsel appearing for the appellants, was that since the possession of the suit land was handed over to the appellants on 20‑2‑1981, the limitation period was to be computed for the purpose of the suit from the above date and not from 8‑9‑1981, when the above mutation was attested. To reinforce the above submission, he has invited our attention to Exhs.P/1, P/2 and para. 1 of the plaint. It may be observed that Exh.P/1 is an extract from the mutation register. In column 14, the following remarks recorded:‑ Exh. P/2 is an extract from the Jamabandi for the period from 3‑1‑1977 to 1‑7‑1979. In column 13 of the same, the following entry appears:‑‑ Whereas, para 1 of the plaint reads as follows:‑ According to Mr. Abid Hassan Minto, the above documentary evidence in the form of Exhs.P/1 and P/2, and the admission of respondent No.1 in his above quoted para. 1 of the plaint, have proved the factum that the appellants had received the possession of the land on 20‑2‑1981. He has also referred to Patwari's report at page 20 of the paper book. On the other hand, Mr. Muhammad Mahmood Bhatti, learned Sr. ASC appearing for respondent No.1, has urged that since the suit land was a part of joint Khata, the possession of the same could not have been given on 20‑2‑1981 and, therefore, for the purpose of computation of the period of limitation, 8‑9‑1981, being the date of attestation, is to be considered in terms of section 30 of the Punjab Pre‑emption Act, 1913. In furtherance of his above Jamabandi Exh.P/2, which clearly indicates that the suit land was part of the joint Khata.

6. The learned Additional District Judge, while decreeing the suit, in para. 6 of the judgment has pointed out that Exh.P/1 shows that Shamlat land attached to Khata No.88 measuring 25 Kanals and 4 Marlas out of such joint property, a share equal to 240/504 was transferred by the vendor in favour of appellants. Whereas, the High Court concluded as follows:‑‑ "It may be noted that Ghulam Ghaus, the vendor had sold 240/504th share in Khata No.88 out of land measuring 25 Kanals and 4 Marlas, which comes to 12 Kanals located in village common land, which is an undivided share and was not capable of physical possession at the time of sale."

7. After having recorded the above finding, the ratio decidendi of the judgment of a Division Bench of the erstwhile High Court of West Pakistan, Baghdad‑ul‑Jadid, in the case of Gullan v. Muhammad Ramzan and others (PLD 1962 (W.P) Baghdad‑ul‑Jadid 33) was pressed into service, wherein the provision of Article 10 of the First Schedule to the Limitation Act, and section 30 of the Punjab Pre‑emption Act, 1913 were analysed as under:‑‑ "

8. Under Article 10 of the Limitation Act, time commences to run from the date on which the purchaser takes, under the sale, physical possession of the whole of the property sold, or if the subject‑matter of the sale does not admit of physical possession, when the instrument of sale is registered. If neither of these conditions are fulfilled Article 10 will have no application and, for purposes of limitation, the law applicable would be section 30 of the Pre‑emption Act. The subject‑matter of the sale in this case was a share in a joint holding and as the sale was not made by means of a registered instrument, this Article had no application, because the purchaser could not have taken possession of the whole of the property sold. Section 30 of the Pre‑emption Act, would, therefore, apply and the suit should have been fled within one year of the date of attestation of the mutation, or within one year of the date on which the vendee took physical possession, under the sale, of any part of the land sold. It is in evidence that Gulan vendee was in possession of the whole of the land of this Khata including that which was not sold to him, prior to the date of the sale, because he was holding it as a sub‑tenant under Karim Bakhsh, who was recorded as a non‑occupancy tenant in the Revenue papers in the year 1953‑

54. Assuming that he continued to occupy this land, after the date of the sale, it would not mean that he took physical possession of a part of this land under the sale within the meaning of section 30 of the Pre‑emption Act; his possession being prior and not subsequent to the date of sale. Reference, in this connection, may be made to three cases of the Lahore High Court, reported as Gyan Singh v. Gyan Singh and another (AIR 1923 Lah. 654), Misri Khan v. Shahi and another (AIR 1924 Lah. 394) and Dhanna v. Lakh Ram and others (AIR 1924 Lah. 695). In the first‑mentioned case, which was decided by a Division Bench, the plaintiffs had brought a suit for pre‑emption, within a year of the date of attestation of the mutation, but more than a year after the date of the oral sale. The defendant‑vendee had been in possession of the land before the sale in his capacity as a tenant. It was held that the period of limitation ran from the date of the mutation. Similar views have been expressed in the other two cases referred to above. The words `under the sale' which occur in section 30 of the Pre‑emption Act, are very significant and indicate clearly that possession of the purchaser must have been obtained in pursuance of the sale made in his favour and that if prior to the date of the sale he was in possession of any part of the land sold that possession cannot be deemed to be under the sale and, hence, time would run from the date of attestation of the mutation and not from any earlier date."

8. We are also inclined to hold that since the suit land was part of joint Khata, the conclusion Arrived at by the learned Judge in Chamber, on the basis of the above case, does not suffer from any infirmity as to warrant taking of a contrary view.

9. Secondly, it was urged by Mr. Abid Hassan Minto that the finding on the question that the suit land had acquired the character of urban property recorded by the learned Civil Judge, could not have been reversed by the learned Additional District Judge keeping in view the reasons found favour with the learned Civil Judge. Reliance was placed by him on the following portion of the judgment of the learned Civil Judge:‑‑ "So the fact that the suit land is situated within the local limits of Municipal Committee Sadiqabad since 1963, the fact that the suit land is no more under cultivation since long; the fact that the suit land is surrounded by Ginning Factories and other commercial sides; the fact that the defendant‑vendees have purchased the land for residential purposes have constructed over there three or four rooms, the fact that the defendant‑vendees are going to install a petrol pump over there; the fact that the D.W.5 had running a shop constructed in the suit land by the vendees in the year 1971‑72, the fact the suit land is surrounded by Sikni plot; the fact that petrol pump is also there quite adjacent to the suit land, the fact that the entire area has got the facilities of electricity and Sui Gas, the fact that the suit land is connected with the national Highway, the fact that Sardar Shah one of the pre‑emptor has been selling his land for Sakni purposes through Mutation No.449 of 25‑12‑1976 and 515 of 17‑7‑1970 attested copy of which are Exhs. D. 7 and D.9, respectively, goes alongwith to come to the conclusion that the suit land has lost its character of agricultural land of village immovable property and has attained urban character and is not pre‑emptible." The learned Additional District Judge reversed the above finding for the following reasons recorded by him:‑‑ "

5. The disputed land is situated within the revenue estate of village Samdani, which is rural area. The suit land is described in the Revenue Record as an agricultural land, and has been transferred through. Revenue Mutation No.520. At the same time, the disputed property is assessed land revenue. All these features and descriptions of the disputed property go to show that, initially, it is an agricultural land. There is no mention, on behalf of the vendees, that the property was not agricultural before its sale, or at the time of sale. Despite this, the respondents contend that they purchased an open plot for residential and commercial purposes. Although they claimed to sale of open plot in their favour, yet they failed to describe the plot exactly, with reference to any specific field number or any portion of the suit property, or any boundary. They also failed to bring on record any site plan of the plot purchased or possessed by them under the disputed sale. In view of it, it is not possible to hold that the respondents ever purchased any specific portion of the disputed property or any given plot which is otherwise Shamlat Deh, vide Exh.Pl and spread over several fields numbers, in the revenue estate concerned:"

10. The above finding has been concurred with by the learned Judge in chamber in the above civil revision. We find that in the above documents (Exhs.P/1 and P/2), it has been shown that the land was under self‑cultivation and, therefore, the conclusion that the suit land had not acquired the character of urban land arrived at by the learned' Additional District Judge and concurred with by the learned Judge in chamber, appears to be in consonance with the evidence on record. The mere fact that under the Basic Democracies Order, the suit land was included within the Municipal Limits of Sadiqadad, would not itself be sufficient to alter the character of the suit land. In this regard, reference may be made to be case of Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others (PLD 1982 SC 159), wherein the terms "agricultural land", "village immovable property" and . "urban immovable property" employed in sections 6 and 7 of the Punjab Pre‑emption Act, 1913, have been dilated upon with reference to the right of pre‑emption, and also the effect of inclusion of a rural area within the limits of town has also been considered. It may be instructive to reproduce the relevant portion thereof, which reads as follows:‑‑

8. The right of pre‑emption by virtue of section 6 of the Act exists in respect of "agricultural land" and "village immovable property". A right of pre‑emption also exists, under section 7 of the Act, in respect of "urban immovable property" in any town or sub‑division of a town subject to proof of existence of custom of pre‑emption in such town or sub‑division. All these three terms, namely, "agricultural land", "village immovable property" and "urban immovable property", are defined in section 3. "Immovable property" either village or urban does not include agricultural land. This is clear from the respective definitions of "village immovable property" and "urban immovable property", which both exclude "agricultural land", which term, by adoption of its definition from the Punjab Alienation of Land Act, 1900, means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture and for this purpose shall even include the sites of buildings and other structures on such lands. The term "urban immovable property", therefore, will not cover "agricultural land" merely on account of its being located in an urban area. It will indeed be a misconception of the law to equate the term "urban immovable property" with "urban property". The Board of Revenue is no doubt empowered by section 8 (2) of the Act to declare by a notification that no right of pre‑emption or only such limited right as the Board may specify, shall exist with respect of any land' or property or class of land or property or with respect to any sale or class of sales. It is nobody's case that the notification in question was issued in exercise of this power. Learned counsel, however, argued that as the property fell in an urban area, the pre emptor was required by section "7 to have established that a right of pre‑emption did exist in respect of the same. This argument, too, we are afraid, is misconceived because section 7 concerns only "urban immovable property" and as already pointed out, the lands in question are not "urban immovable property". The contention, therefore, that an agricultural land becomes excluded from the purview of the Act merely on account of its inclusion in an urban area is not tenable. It was held in Salamat Rai v. Kanshi Ram and others (AIR 1918 Lah. 334), that: "The mere fact that for certain reasons the Local Government has seen fit to include a part of the Premgarh estate within the Municipal limits of Hoshiarpur City, does not necessarily mean that the locality in question had become a part of the town for purposes of pre emption." The same principle was reiterated by a Division Bench in Abdul Rahman v. Haji Rashid (AIR 1937 Lah. 182), when it was held 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" but that it "may lose its pre‑existing character and be then absorbed in the urban area."

11. The learned Judge in chamber has relied upon a recent judgment of this Court in the case of Nazir Abbas v. Manzoor Haider Shah (PLD 1989 SC 568), wherein this Court has considered the following factors for deciding the character of the suit property:‑‑ (i) The locality has been provided with water supply from the Town Committee. (ii) It situates at a distance of one furlong from the Court. (iii) Many houses including the house of a Councillor are found in the same locality. (iv) The Town Committee has provided street lights in that locality. (v) The Town Committee treated the property as urban property and charged tax on its transfer to the appellants. (vi) That the Committee had given a contract for the construction of metalled lane in the Ward. (vii) That the people of the locality got their ration quota from the urban quota. The finding recorded by the learned Additional District Judge on the above question and concurred with by the learned Judge in chamber, does not suffer from any infirmity as to warrant interference by this Court.

12. The upshot of the above discussion is that the appeal fails and, therefore,‑it is dismissed. However, there will be no order as to costs. AA./A‑1110/S Appeal dismissed.