1988 C L (PLP)

3. The appellants/ defendants denied ‑the' superior right of pre‑emption of the respondent and inter alia contended that the suit was barred by' time as their father had taken possession of this property on 4‑9‑1961 and they had been in possession of this property since then. They also assailed the valuation of the suit for purpose of Court‑fee and added that they had constructed three shops‑ and an upper storey on the property in dispute at the expense of Rs.10,000 and in case the decree was passed in favour of the plaintiff than he was bound to pay them the value of the improvements. They also took plea of partial, pre‑emption and the learned trial Court formulated the following issues:‑ (1) Whether the plaintiff has got a superior right of pre‑emption qua the vendee defendants? OPP. (2) Whether the suit is within time? O.PP. (3) Whether the suit is for partial pre‑emption? If so with what effect? OPD. (4) Whether the defendant has effected any improvement ‑on the suit land? If so, with what effect? OPD. (5) Whether the suit is properly valued for the purpose of Court fee and jurisdiction? OPP. (6) Relief. Issues No.l and 2 were decided in favour of the plaintiff and issue No‑3 was decided against the defendants /appellants. The suit was consequently decreed on payment of Rs.2,

500. Rs.5,900 were paid as the value of the improvements and the additional Court‑fee was also paid by the plaintiff /.respondent. The appellants lodged an appeal which was dismissed. The learned counsel for the appellants has agitated issues No.l, 2 and 3 only.

4. As regards issue No.l, it has been contended that the property in dispute is not agricultural land and is urban immovable property and the plaintiff could not boast of his right of pre‑emption under section 15 of the Punjab Pre‑emption Act 1913 (which shall hereinafter be called as an Act). He added that the shops were not pre‑emptible as envisaged under section 5 of the Act and the suit of the plaintiff merited dismissal.

5. It has scrupulously been conceded by Mian Allah Nawaz, Advocate, the learned counsel for the respondent that the land in dispute had 'lost its agricultural character but it was village immovable property. The learned counsel for the appellants insisted that the "property in dispute was urban immovable property and not village immovable property. The definition of 'village immovable property and urban immovable property as embodied in section 3 of the Act, may be reproduced for the facility of reference as under:‑ "3(2) 'village immovable property' shall mean immovable property within the limits of a village, other than agricultural land'; (3) 'urban impovable property' shall mean immovable property within the limits of a town, other than agriculture land. For the purposes of this Act a specified place shall be deemed to be town (a) if so declared by the Board of Revenue by notification in the Official Gazette, or (b) if so found by the Courts;" The land in dispute bearing rectangle No.411/1, field No.20 is situate ' in Bahadurpur which cannot be termed as a town as .it has not been so declared by the Board of Revenue by notification in the Official A Gazette nor it was so found by the Courts. The mere fact that there are number of shops around the property in dispute does not make Bahadurpur as a town and consequently the land in dispute cannot be 'called urban immovable property. However, it is village immovable property and village immovable property can be pre‑empted under section 15 of the Act. The parties do not grudge that the pre‑emptor is not a collateral of the vendor or a co‑sharer in the Khata in dispute. In this manner he has got a superior right of pre‑emption as compared to that of the v‑endees.

6. The contention of the appellants is that the shops have been constructed on the land in dispute and under section 5 of the‑Act they are not amenable to the Pre‑emptior Law. It may be noted that a pre‑emptor steps into the shoes of the vendor and by right of substitution, he is to have the property sold by the vendor in a pre‑emption suit. The shops were not sold by Muhammad Bakhsh to the appellants and their stand is that they were constructed by their father or by themselves. So there was no sale of shops and the law l contained in section 5 cannot be extended to this suit. The land in dispute was, therefore, pre‑emptible.

7. It has been contended with reference to the document Exh.D‑4 that the land in dispute had been sold to Dr. Muhammad Shafi the father of the appellants on 4‑9‑1961 and since then the appellants have been in possession of this property after the construction of shops thereon and they held the possession of this land under sale since then, and the suit of the plaintiff was barred by time. In this context it. may be noted that by .virtue of the agreement of sale Exh.'D‑4 only 10 Marlas of land out of fields No. 19 and 20 of Rectangle No.411/1 was sold. It was sold for Rs.500 only and the vendee was the father of the appellants. But in this case as is evident from the registered sale‑deed Exh.P‑1, one Kanal and 12 Marlas of land has been sold for Rs.2,

500. In the former document Exh.D‑4. the area, the name of the party, and the amount of consideration, do not tally with the area, the name of the party, and the amount of consideration contained in the registered sale‑deed Exh.P‑

1. The appellants have produced evidence to the effect that the shops constructed on an area of 10 Marlas had been let on lease to different persons. If it be conceded that the shops were constructed long ago, it `was done after the execution of the agreement of sale Exh.D‑4 and by means of a subsequent sale=deed registered on 27‑2‑1971, one Kanal and 12 Marlas of land was sold. It shows that a part of the land in dispute was'in possession of the appellants since 1961. The learned counsel for the appellants has cited Niaz Ahmad and others v. Mian Abdul Rahman and others P L D 1961 (W.P.) B.J. 1 which lays down that under section 30 of the Limitation Act, the possession of even 'a part of the property by the vendee, beyond‑one yaer makes a suit barred by. 'time. The learned counsel for the appellants is oblivious of the fact that under section .30 of the Limifation Act, the possession of even a part of the property by the vendee affects the limitation for the institution of a pre‑emption suit but this law is different in the case of a registered sale‑deed. Article 10 of the Limitation Act governs the period of limitation for lodging a pre‑emption suit which is one year. It commences to run when the purchaser takes, under sale, sought to be impeached physical porsession of the whole of the property sold, or where the subject of the sale does not admit of physical possession then from the date when the instrument of sale is registered. It follows that the vendee has to show that he was in possession of the entire property in dispute under sale before the registration of the sale‑deed and in this case proof is lacking as to when did the appellants take possession of the entire land in dispute under sale. They had laid stress on the document Exh.D‑4 by proving that they were in possession of the shops in dispute after the execution of the agreement of sale‑deed 'hxh.D‑

4. The area covered by the shops according to the judgment of the learned trial Court measures 3 to 4 Marlas only and the remaining plot is lying vacant, although enclosed by a wall. In such eventualities, when a right of preemption regarding a plot, where shops had been constructed, it was held in All Akbar v. Muhammad Anwar 1981 S C M R 775 that the only exemption which could be granted from the law of pre‑emption was the area covered by' the shops and the rest of the area could be pre‑empted. In this manner, the appellants had failed‑to prove that' they were in possession D of the entire land in dispute under sale before the registration of the sale‑deed. Endorsement of the Registrar on the sale‑deed indicates that the money was paid outside his Court, which manifests that the appellants took possession of this property under sale on 27‑2‑1971 and the suit was filed on 25-21972 which is within time

8. The learned counsel for the appellants represented that the suit was hit by' the principle of partial pre‑emption, as no suit was brought in respect of the shops constructed on the property in dispute. I do not countenance this argument because what .was sold by the vendor was made the subject‑matter of a pre‑emptive suit by the pre‑emptor and 'if shops were made thereon subsequently, they are not a part of the property‑ sold to the appellants and in this manner, the question of partial pre‑emption does not arise. The concurrent findings of both the learned lower Courts on the matter of fact embodied in issues Nos.l to 3 cannot ligbtly be disturbed. 1, therefore, see no merit. in this, Regular Second Appeal and dismiss the same with costs throughout. M.Y.H./A‑298/L Appeal dismissed.