1993 PLP 1308 (SCMR)

SALEEM AKHTAR, J.‑‑‑This appeal by the leave of this Court is directed against the judgment dated 21‑6‑1988 passed by the learned Single Judge of the Lahore High Court in a revision application filed by the appellant, dismissing the same and maintaining the judgment and decree passed by the Courts below. The brief facts are that one Muhammad Siddique sold land measuring 8 Kanals 18 Marlas to the appellant through a sale‑deed registered on 9‑9‑1968. The respondent, being wife of one Muhammad Siddique claiming superior right of pre‑emption over the appellant/defendant filed a pre‑emption suit against him. The appellant denied the claim and pleaded. that the property is not pre‑emptible. There exists a brick‑kiln and many houses in the neighbourhood have been constructed. He further pleaded that he has spent Rs.20,000 on the improvement of the property which is a Sikni land and was sold as such. The suit was decreed on 7‑4‑1975. The appellant filed an appeal against the judgment and decree passed by the learned trial Court which was dismissed on 2‑2‑1977. The revision application filed by the appellant did not succeed. Leave was granted to consider the following questions:‑‑‑ "(i) Whether the nature of the land had changed because the brick‑kiln had stopped operating on it as per respondent for about two years prior to the sale transaction? and (ii) what was the effect of the aforesaid notification dated 23‑12‑1974 issued by the Punjab Local Government Department notifying the urban area which included the land on the pre‑emption suit?" ' The learned counsel for the appellant contended that as the brick‑kiln existed on the land prior to the sale transaction, it changed the nature of the land and therefore it was not pre‑emptible. There seems to be no dispute that there existed a brick‑kiln which had stopped operation much before the sale transaction. In support of his contention that the disputed. property is not a `land', the learned counsel referred to gala Khazanchi Shah v. Haji Niaz Ali AIR 1940 Lah.

126. In this judgment the term `land' as defined by the Punjab Alienation of Lands Act was under consideration. In view of the definition under section 2(3) of the Act it was observed that the land should not be considered to fall within the definition of `land' unless it is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture or falls under any of the categories mentioned in it. It was further observed that if a land has been used continuously for a brick‑kiln for a long time it cannot fall within the definition of section 2(3). In our view these observations are based on a definition provided by that Act and cannot be applied in this case. The attention of the learned counsel was invited to section 3, subsection (2) of the Punjab Pre‑emption Act, 1913 where village immovable property has been defined as follows:‑‑‑ "Village immovable property shall mean immovable property within the limit of the village other than the agricultural land." By this definition, immovable properties existing within the limit of village and are not agricultural land shall be treated as village immovable property. Such village immovable property is pre‑emptible. There was no satisfactory reply to this query. As observed by the learned Judge in Chamber, the learned Advocates for the parties had agreed before the first appellate Court that for purposes of pre‑emption at the time of sale and institution of the suit the disputed property was a village immovable property. In our view although brick‑kiln existed which had stopped operation and the land may not have been used for agricultural purposes it remained a village immovable property and was pre‑emptible. The learned counsel for the appellant then contended that before the decree was passed by the learned trial Court, the land in dispute was included in the urban area by notification dated 13‑7‑1974 and therefore it was not pre- emptible. The learned counsel has produced a photo copy of the corrigendum Notification dated 31st December 1974 in respect of notification dated 24‑12‑1974 issued by Government of the Punjab, Local Government and Social Welfare Department. By this corrigendum the schedule of Notification dated 24‑12‑1974 was sought to be amended by substituting the boundaries of the area mentioned in the notification. However, the original notification to which the schedule was appended and has been corrected was not produced. It is not known for what purpose this particular notification had been issued. Even otherwise on scrutiny the learned counsel for the appellant has not been able to point out the survey number in dispute in this corrigendum notification. The learned counsel for the respondent has vehemently argued that the disputed area was never included in the notification. The learned counsel for the respondent pointed out that the notifications are issued for several purposes and unless it is established that the notification was issued for purposes of pre‑emption, it will not cover the present case. The learned counsel has referred to Hassan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159 in which a notification issued for the purposes of the Basic Democracy Order, 1959 declaring certain immovable property as an urban area was held not applicable for purposes of Punjab Pre‑emption Act. The learned counsel also relied on Salamat Rai v. Kanshi Ram and others AIR 1918 Lah. 334 where it was observed that the fact that for certain reasons a Local Government has deemed it fit to include any land within the Municipal limits does not necessarily mean that it has become apart of the town. The learned counsel for the respondent contended that at no stage the pleading was amended by the appellant nor the notification was produced during evidence in a proper manner. Reliance was placed on' Shah Muhammad and 5 others v. Muhammad Saleem and another 1985 SCMR 1723 where similar plea was raised without amending the written statement and the same was rejected with the following observation:‑‑‑ "As regards the admissibility and effect of this notification, the learned counsel referred to sections 56, 57 and 83 of the Evidence Act to contend that the Court should have itself determined the legal effect of such a notification. In applying the notification and giving effect to it a finding of fact had to be recorded and that was whether the land in fact was included within the limits of the Cantonment or not. As this was a question of fact it required proper pleadings, issues and evidence for a decision thereof. Judicial notice can certainly be taken of the notification but a finding of fact could not follow such a recognition and the proof required in the matter could not be dispensed with. The Courts have taken a correct view of the law and there is no merit in this petition. Leave to appeal is, therefore, refused." Similar situation prevails in this appeal also and we are therefore not inclined to accept the contention of the learned counsel for the appellant in giving effect to the notification. The appeal is dismissed. AA./C‑125/S Appeal dismissed.