1997SCMR483 (PLP)

FAZAL ILAHI KHAN, J. ‑‑‑By this judgment we propose to dispose of Civil Appeals Nos. 135/92, 136/92 and 137/92 filed by the appellants/vendees defendants and Civil Appeal No.389/92 by the appellant/plaintiff‑pre‑emptor with leave of the Court, these having arisen out of the suits for pre‑emption in which common question "whether the land in dispute had ceased to be agricultural land and assumed the character of urban immovable property", requires determination.

2. The subject‑matter of Civil Appeal No.135/92 is land measuring one Kanal out of Khasra Nos.65/8/2/7/9 situated in Mauza Neel Kot, Tehsil and District Multan purchased by Abdullah Jawad Asmi and pre‑empted in Suit No.855 instituted on 12‑3‑1977. The suit was decreed in favour of the plaintiff‑respondent on 5‑6‑1984 and appeal against that was dismissed on 11‑7‑1988. The Regular Second Appeal No.144 of 1988 (treated as C.R. No.693/D of 1991) against the judgments and decrees of the Courts below was dismissed on 27‑11‑1991 by a learned Judge of the Lahore High Court. Leave was accordingly granted against the judgment of the learned High Court on 29‑3‑1992.

3. The subject‑matter of Civil Appeal No.136/92 is the land measuring 2 Kanals out of Khasra Nos.65/8/5 situated in Muaza Neel Kot, Tehsil and District Multan, purchased by Mst. Azra Asmi wife of Major Razaullah Tariq Asmi through registered sale‑deed dated 12‑3‑1976. The sale was pre‑empted by the plaintiff‑respondent herein which was dismissed on 5‑6‑1984 and appeal against the same was also dismissed on 11‑7‑1988. Similarly Regular Second Appeal filed against the judgments and decrees of the Courts below was dismissed by the learned High Court.

4. The subject‑matter of Civil Appeal No.137/92 is the land measuring 2 Kanals out of Khasra Nos.65/8/5 situated in Mauza Neel Kot, Tehsil and District Multan, purchased by Mst. Munawar Sultana which was pre‑empted by the plaintiff‑respondent herein and decreed on 5‑6‑1984. The appeal against the same was dismissed on 11‑7‑1988 and the Regular Second Appeal (treated as C.R. No.692‑D of 1991) against the judgments and decrees of the Courts below was also dismissed on 27‑11‑1991.

5. The subject‑matter in Civil Appeal No.389/92 is the land measuring 2 Kanals 1 Marla out of Khasra Nos.65/9/1‑10/1 situated in Mauza Neel Kot, Tehsil and District Multan, purchased by Khawaja Haroon Khurshid respondent which was pre‑empted by Mst. Nasim Iqbal, plaintiff‑appellant herein. Her suit was dismissed on 22‑2‑1983 but the appeal against the same was accepted and her suit was decreed on 26‑10‑1983. However, the learned High Court accepted the Regular Second Appeal, set aside the judgment and decree of the Appellate Court and restored that of the trial Court vide judgment and decree, dated 17th September, 1991.

6. At the hearing of the petitions for leave to appeal in the three matters it was argued that the plots in suit are situated in the Shalimar Colony and had been purchased for construction of residential houses; that the land before its purchase was no more agricultural land and had lost its character as such and it had assumed the character of urban immovable property. Such plea was specifically raised in the written statement filed by the respondent/vendee in the trial Court in the suits in Civil Appeal No.389 of 1992 but no such plea was raised in the other three suits of Civil Appeals Nos.135, 136 and 137 of 1992. The trial Court, therefore, did not allow the appellants in the three suits to lead evidence on such plea and the evidence available on the record in this regard was not considered. The learned counsel referred to the judgment of the learned High Court dated 17‑9‑1991 of the same learned Judge wherein it has been held that a number of residential colonies have grown up and that all the sale mutations of the land in Mauza Neel Kot have been for residential purposes. On such finding it was held that the land was no more rural area and it has grown into a suburb of the Multan Town the learned High Court has accepted the Civil Appeal No.389 of 1992.

7. It was noted that there was a contradiction in the judgments delivered by the learned High Court in the aforementioned four appeals i.e. in the three appeals the land situated in the same Colony i.e. Shalimar Colony, was declared agricultural land and suits for pre‑emption decreed while in the fourth one the plot located in the colony was declared urban immovable property and the suit for pre‑emption dismissed. This contradiction was noted to be due to the fact, as stated above, that the vendees in their written statement did not take the specific pleas that the land was no more agricultural land. The vendees in Civil Appeals Nos. 135 to 137 of 1992 considering the defect going into the rest of the case applied for amendment of their written statement so as to enable them to aver that the plots purchased by them had assumed urban character and could no longer be described as agricultural land. This Court found it as an extraordinary request at this stage and observed that even though the vendees had not specifically taken up the said plea in their written statement and for that reason no issue was framed by the trial Court to cover this aspect of the matter, still most of the evidence of the parties was directed to this part of the controversy which was very root of the litigation between them. Therefore, considering that the case was one of those cases where the parties were aware right from the beginning with regard to the nature of the real controversy, yet the controversy was not put to trial on account of omission in the written statement, the application was allowed and the vendees were permitted to amend their written statement.

8. As the suits had been pending before the Courts below for the last 16 years, therefore, in order to avoid further agonies of the parties, it was deemed proper to refrain from remanding the suits to the trial Court and, instead, a new issue to the following effect was framed:‑ "Whether the land in dispute has ceased to be agricultural land and assumed the character of urban immovable property? (OPD).

9. The trial Court was directed to record evidence of the parties on the issue and forward the same to this Court within three months. Civil Appeal No.389/92 was kept pending for disposal alongwith the aforementioned appeals.

10. In pursuance of the above directions, an amended written statement was filed in the three suits in which specific pleas were raised that the suit land was no more agricultural land and that it had assumed the character of urban immovable property; that the land had been developed as Shalimar Colony with all the civil facilities made in the Punjab Gazette dated 21‑5‑1976.

11. In the evidence Khalid Hussain, Syed Muhammad Amin, Muhammad Saeed Malik and Javaid lqbal appeared on behalf of the appellants/vendees defendants. Malik Muhammad Waryam Khan, plaintiff‑respondent, Ashiq Hussain and Zafar Iqbal appeared from the plaintiff/pre‑emptor‑respondent's side. Both the parties also relied on documentary evidence consisting of the site- plan of Shalimar Colony, photographs of the constructed houses and the Revenue Record in support of their pleas.

12. We have heard the learned counsel for the parties and have gone through the evidence with their help. The factual background of the matter is that one Mst. Amna Khatoon was the owner of considerable land in village Neel Kot situated on the outskirt of Multan City. The land was bounded on three sides by metalled roads, therefore, taking advantage of its favourable location she intended to set up a residential colony and for that purpose converted the land into residential plots of different sizes, varying from one Kanal to two Kanals each. The appellants‑vendees purchased out of it the respective plots in suits through registered sale‑deeds. Mst. Nasim Iqbal appellant pre‑empted the plot in question in Civil Appeal No.389/92 and Malik Muhammad Waryam Khan respondent pre‑empted the plots in question in the other three appeals claiming their superior right of pre‑emption on the ground that the plots sold by Mst. Amna Khatton constituted agricultural land and that they being owners in the estate had got superior right of pre‑emption. Malik Muhammad Waryam Khan further claimed to be a shareholder in the Khata.

13. In order to appreciate the view‑point of the learned counsel for the parties on facts and circumstances of the case as stated above, it would be appropriate to refer to the salient feature of the parties' evidence led on the material issue framed by this Court. Khadim Hussain (D.W.1) in his statement made in the trial Court had stated that Mst. Amna Bibi was the owner of Shalimar Colony that he was her Estate Manager including the suit property. That the land on the side of Bosan Road was converted into residential plots, after cutting orchard therefrom, and named as Shalimar Colony in the year 1972‑

73. A site‑plan of the area was prepared which is marked "A" consisted of plots of different sizes with roads and streets shown therein. That more than one‑half of the plots in the colony have been constructed upon. All the civil amenities have been provided in it such as telephone, electricity etc. the colony is inhabited by Professors, Doctors and other officers. That the entire area right from Katcheri upon Shalimar Colony has been constructed upon. In his cross‑examination the witness admitted that there was nothing in black and white to show that he had been appointed Estate Manager by Mst. Amna Bibi. He further admitted that the sale‑deeds in respect of the plots in question were to be executed by her general attorney who was her son. These sold plots were of an area measuring 2 Kanals 1 Kanal and 10 Marlas each in size. He admitted that he had prepared the site plan and that it was not approved from the Municipal Corporation, Multan or any other developing authority. He also admitted that there are other colonies such as Gulshan Colony Gulgasht Colony, Sabzazar and Income Tax Colonies established in the vicinity of the Shalimar Colony in the outskirt of Multan City. That the colony in question till then was outside the Municipal limits. He admitted that before such conversion the land was agricultural in character.

14. Similar is the statement of Muhammad Rafiq Shah (D.W.2) who stated that in the year 1975 he purchased a plot in Shalimar Colony in the name of his wife and raised construction over it within a period of six months. That before the said purchase he had visited the colony and had observed that a large number of persons had already raised construction over their plots purchased in the said colony. These plots were constructed by jounalists, professors, doctors and well placed persons. That all the civil amenities are available in the colony. That the entire area right from each time up to Gulshan Colony area is built up one. Rather Bahauddin Zakarya University is ahead of Shalimar Colony. That Toyota show‑room has been constructed in the said colony just towards the West of his house. That he has been given electric connection for his house in the year 1975. That boundary walls have been raised in the plots in question. He did not deny that the colony is established in different sectors of the Municipal limits. Muhammad Saeed Malik D.W.3 stated that he purchased plot No.12 in the Shalimar Colony in the name of his wife Mst. Munawar Sultana in the year 1975. That the house of Professor Syed Safdar Imam and that of Azra Asmi are adjacent to his plot. That construction has been raised all around his house in the Shalimar Colony. That he purchased his plot after looking into the plan of the colony which is Exh. "A" on the file and not on the basis of the Revenue Record as the land was purchased for construction and not for agricultural purpose. Javaid Iqbal (D.W.4) appeared on behalf of Abdullah Nawad Asmi and stated that the plots under pre‑emption are situated in Shalimar Colony, Bosan Road. That this Colony was established in year 1971‑

72. That he purchased the plot after he visited the area and was fully satisfied that it was a well‑planned colony wherein. houses have already been constructed, roads and streets are in existence. That he selected, plot in the site plan which was shown to him on the spot before he entered the sale transaction. He negotiated the transaction with Khadim Hussain (D.W.1) who was acting as Manager for Ahmad Nawaz Gardezi, Attorney of Mst. Aamina Bibi. That the colony comprised about 500/600 plots in which 400/450 have been constructed so far. That there were already 40/50 constructed houses when he purchased the plot. He stated in cross‑examination that after 1971‑72 the land was no more agricultural in character.

15. In rebuttal of the above evidence Malik Muhammad Waryam Khan pre‑emptor deposed that the suit property situated in Mauza Neel Kot which is outside the Municipal Corporation limits. That the limits of Multan Municipal Corporation extended up to Octroi Post No.6 situated in Mauza Mark Awwal which extends from Clock Tower up to the Octroi Post and that from Octroi Post No.6 situated in Mauza Mark Awwal which extends from Clock Tower up to the Octroi post and that from Octroi Post No.6 the area of Neel Kot starts which extends further up to 4 miles. That the entire land of Mauza Neel Kot was agricultural in nature at the time of sales in question and it falls in the limits of District Council. He further stated that he was and to be the member of District Council from this area. That the residents of Neel Kot are agriculturists and their lands are irrigated through minors and Chah known as Nawabpur minors and Shahpur minors. That land in dispute is still agricultural and subject to revenue even after 10 years of the establishment of the so‑called Shalimar Colony. That the character of the land at the time of sale was agricultural and at that time no civil amenities as well as lights and streets were available. Malik Sher Awan purchased about 40 Kanals of land on Bosu Road in the year 1979 where he is running his business. That Toyota 'show‑room was constructed in 1993. That from the Octroi Post No.6 up to Zakaria University excepting the Toyota show room there is no other show‑room in existence on the road. That Zakaria University at Bosan Road is at a distance of about 10 miles from the City. In his cross‑examination the witness has admitted having seen the suit land but denied that it was in the shape of plots sold to the vendees/defendants. He admitted having filed pre‑emption suit against Mst. Munawar Sultana, Mst. Azra Aasmi and Abdullah Jawad Asmi. He admitted that he previously bought a suit for pre emption regarding the piece of land in Mauza Neel Kot which has been decreed in his favour. He further denied the suggestion that he filed 4 pre‑emption suits in the name of Naseem Iqbal, his daughter‑in‑law, and showed his ignorance whether he has also brought a suit against Dr. Haroon Khurshid and that her suit against him was dismissed up to‑ the High Court. He denied that Dr. Khurshid has on Bosan Road a plot and adjacent to the plot of Mst. Munawar Sultana but stated that it was at some distance. He denied that on the South of the plot of Mst. Munawar Sultana is the house of Safdar Imam as he has got no house. He also denied the existence of the house of Parvez Hashmi and others in the vicinity of the suit land. He also denied that all the plots in Shalimar Colony have been constructed. When he was questioned about the boundaries of the plots under pre‑emption he showed his ignorance and stated that the land is agricultural in character. He denied the existence of the Income Tax Officers Colony on Bosan Road.

16. Maqbool Hussain (P.W.2), Rana Abdur Razzaq (P.W.3), Atta‑ur- Rehman (P.W.4) and Sayed Muzaffar Hussain Shah (P.W.5) made identical statements. Each one of them was asked about the establishment of several colonies on Gulgasht Road and construction raised in these colonies which they flatly denied. Syed Muzaffar Hussain Shah (P.W.5), however, made the following statement in his cross‑examination:‑--

17. After appraisal of the evidence referred to above it would be helpful to refer to the description of the plot in question given in these deeds. The boundaries of the plot purchased by Abduliah Javajd Asmi (CA‑135/92) is described as under:‑‑ Plot sold in favour of Azra Aasmi (CA‑136/92) is described in registered sale‑deed as under:‑

18. Similar description is given of the other plots in question.

19. From what has been referred to above there is no denial of the fact that the property in dispute was originally agricultural land owned by Mst. Amina which was converted into residential plots in the shape of Shalimar Colony before the sale in question. The sale‑deeds in question have been placed on file wherein the property was sold as residential plots of specific area giving its plot number and the boundaries thereof. Streets and roads have been accounted for these plots in the site plan Exh.PA available on the file. The relevant date for determining the character of the land in suit is the date on which the sale took place but in the instant case when the orchard was cut from the land and the land was converted into Shalimar Colony and plots were prepared per the site plan Exh.PA, according to vendees, the sale in their favour was made. Such was the case set up in the pleadings and on which the evidence was led by both the parties. Preponderance of oral and documentary evidence in this case is in favour of the vendees. The Court has, therefore, to take into consideration such evidence alongwith other surrounding circumstances to find out whether the land in dispute ceased to be the agricultural land at the time of sale and it has assumed the character of immovable property.

20. In Lal and others v. Muhammad Sharif (PLD 1961 (West Pakistan) Lahore 47) wherein similar question for consideration was whether the property in suit had lost its character as agricultural land the learned trial Judge dismissed the suit holding that the site in dispute was within the limits of Gujrat and that it was as such no longer part of village immovable property within the meaning of the Punjab Pre‑emption Act. The learned District Judge on appeal however reversed the findings and held the site was village immovable property and decreed the pre‑emption suit. When the matter came up before the learned High Court it was observed that the learned trial Court very properly scrutinised the evidence and inspected the site and affirmed its urban character by dismissing the plaintiffs' suit. It was observed that:‑‑

"the site in dispute is surrounded by roads and 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 3 furlongs from this place‑‑‑‑‑‑ Government servants, artisans and owners from other villages reside. The site is thus obviously situate in an area where people other than residents of the original villagers live and they do not follow agricultural pursuits for their livelihood. In the vicinity of this place is bungalow‑office of the Executive Engineer. Applying the tests laid down in. Sh.Abdur Rehman and another v. Khan Sahib Haji Rashid Ahmad (AIR 1937 Lahore page 182) there is little room for doubt that this locality is in the suburb of the Town of Gujrat and is 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, hospital or regular bazars ‑in this area." On such finding the learned High Court set aside the judgment of the District Judge and restored that of the trial Court.

21. In Allah Bakhsh v. Ilahi Bakhsh and 3 others (PLD 1975 Lahore 359) the properties in suit comprised of two sales of 10 Marlas each situate on Chah Chotiwala, Mauza Taraf Mubarak Awal City of Multan the question involved in the High Court was whether the property in suit was agricultural or urban immovable property the land was entered Zarai Arazi in the headnote of the sale deed but in the body therein the description given was not that of agricultural property. Khasra Girdawari which had been relied upon by the Courts below clearly showed that a portion of the property was Ghairmurnkin Abadi whereas the other portion was under cultivation. In rejecting such evidence and holding that the property has acquired the character of urban immovable property it was held that: "Khasra Girdawari also described a portion of the land as Ghairmumkin Abadi and the perusal of the sale‑deeds and area mentioned therein obviously goes to show that the alienations were for small pieces of land for construction purposes. The land in dispute, therefore, is obviously urban immovable property." The finding of the Courts below were set aside and the pre‑emption suit dismissed.

22. The aforementioned judgment (PLD 1975 Lahore 375) came for re consideration in petition for leave to appeal in Ilahi Bakhsh and others v. Allah Bakhsh (1982 SCMR 457) and this Court while dismissing the petition observed as under:‑‑ "The only point argued by the learned counsel was that the High Court has erred in holding that the land in dispute was not an agricultural land and that it was an urban immovable property. We have gone through the record as contained in the paper books and heard the learned counsel at length. It may be mentioned that the area involved was only 10 Marlas (in each case) and the High Court, has after perusal of the relevant record held that part of it was shown therein as ' Ghairmumkin Abadi'. It was surrounded by houses, Pukka metalled road and located out of the Municipal limits of Multan City. The High Court referred to a large number of cases, cited before it by the learned counsel for the parties, for the purpose of the relevant factors which in such cases are to be taken into considerations and after referring to the same in the light of the facts and the circumstances of the present case held that the property in dispute was urban immovable property and further that 'the perusal of the sale‑deeds and area mentioned therein obviously goes to show that the alienations were for small pieces of land for construction purposes. This view of the High Court appears to be well‑considered."

23. In Ilahi Bakhsh v. Sultan and others (1989 CLC 787) to determine the character of the land the principles laid down in Allah Bakhsh v. Illahi Bakhsh (PLD 1975 Lahore 359) were followed and it was found that the present case stood on better footing than the precedent case as in the sale‑deed the land itself was described as Siknee as it related to sale of only 2 Kanals of land which had been alienated in favour of 6 persons reflecting that the same was not sold for agricultural purposes but for raising construction thereon and the fact found mention in the sale‑deed itself. The land was found to be surrounded on one side by public street and on the other side by the house of Ali Murad. In the Khasra Girdawari produced by the petitioner most of the land was 'Ghairmumkin. Abadi' or 'Banjar Qadeem'. There was sufficient evidence on record that the land was surrounded by 100/150 houses and quite close if not adjacent to the T.D.A. Colony. There were also roads, shops in the locality and the area was fully electrified. After such finding it was held that no exception could be taken to the finding recorded by the learned District Judge, hence the revision petition was dismissed.

24. From all what has been stated above and in the light of the guideline provided in judgment referred and several others cited by the learned counsel for the parties it is established in the evidence that the land in suit though originally agricultural in character was converted into residential plots in the shape of Shalimar Colony. These plots were of small areas of 2 Kanals, one Kanal and 10 Marlas for construction purpose and for no other purpose. These were sold as residential plots having roads, and streets in accordance with the site plan prepared before its sale. The contention raised that the site plan was not A sanctioned would make no difference on facts of the present case. It is evident from the Revenue Record placed on file that a large number of such mutations have been attested in the year 1971-72 regarding 10 Marlas, and one Kanal and 2 Kanals in areas on which houses have been constructed. These are in the vicinity of the suit plots. In the sale‑deeds under pre‑emption the boundaries of the plots in question, with its length and breadth have been given to show that the plots were not meant for agricultural purposes but raising construction thereon. The facts that in the sale‑deed the land is mentioned as Zarai Arazi is not inconsistent as undoubtedly previously it was Zarai land which was converted into plots before it was sold as such in favour of the appellant/vendee. There is a full‑fledged Colony by the name of "Shalimar Colony" established. There have also been other several Colonies established such as Income‑Tax Colony, Sabzazar Colony and Gulgasht Colony etc. in the vicinity. This colony is on the main road and in the suburb of Multan and has been included in the limits of Multan Development Authority. It is also in the evidence that the houses constructed in the Colony have been electrified. In that part of the Colony, which is on road‑side, show‑room of Toyota Motors has been established. Even far away from this Colony there is Bahauddin Zakaria University on the same road. There is overwhelming evidence on the record as such to prove that the properly in question has acquired the character of urban immovable property and it ceased to be agricultural land. The evidence of the respondent to the contrary appears to be of no substance. The D.Ws. have suppressed the actual facts and in cross‑examination have denied all the suggestions put to, them.

25. It may also be pointed out that the Courts below have concurrently held in the judgments under appeal in Civil Appeal No.389 of 1992 that the subject matter of the suit, which is a plot in Shalimar Colony, was not pre‑emptible as the land has assumed the character of urban immovable property and ceased to be agricultural land at the time of its sale. Such being the case the concurrent findings of 3 Courts below on the question of fact which is supported by evidence on record is not open to interference by this Court in Appeal No.389 of 1992. Accordingly, we dismiss appeal No.389 of 1992.

26. For the reasons stated above Appeal No. 135 of 1992, Appeal No. 136 of 1992 and Appeal No. 137 of 1992 are accepted. The judgments and decrees of the Courts below are set aside and the plaintiffs/respondents' suits for pre emption dismissed. Parties are directed to bear their own costs. A.A/A‑1399/S Order accordingly.