1994 PLP 1168 (SCMR)

MUHAMMAD AFZAL LONE, J.‑‑‑This appeal by leave to appeal has arisen out of a pre‑emption suit brought by Malik Allah Bakhsh, respondent, against the appellants' predecessor‑in‑interest, namely, Mauj Ali, who died during the pendency of the civil suit and was substituted by the appellants. A piece of land, measuring 1 kanal, situate in village Kotli Najabat, Tehsil Shujabad, District Multan, purchased by the deceased vide registered sale‑deed dated 3‑5‑1978, was the subject‑matter of the suit. The respondent based his superior right of pre‑emption, on being "owner of the estate" and produced a copy of Register Haqdaran for the year 1975‑76, wherein he was recorded as owner of the land measuring 12 kanals, 5 marlas, under cultivation through a tenant. Mauj Ali (deceased) resisted the suit and claimed that he, too, was "owner of the estate" and thus pleaded that the respondent was not possessed of any superior right of pre‑emption. This claim was founded on ownership of land measuring 1 kanal, bearing Khasra No.136/3/1/2, purchased by him under Mutation No.819 dated 8‑5‑1964. In the proceedings recorded by the Revenue Officer, while sanctioning the mutation, it is stated that the land was sold for residential purposes and the sale was not violative of the provisions of MLR‑

64. It is to be noticed that sale of land bona fide required for the purposes of building thereon, was excluded from the purview of the restrictions imposed on the alienation of land under Para 25 of the Regulation. It may be observed that in the jamabandi for the year 1976‑77 the land owned by the appellants' predecessor‑in‑interest has been shown as ghair mumkin abadi. Similar is its description given in the subsequent jamabandi for the year 1980‑81.

2. Before the trial Court, the appellants asserted that ownership of agricultural land purchased for residential purposes did not disentitle them to be called as "owner of the estate" and placed reliance on Muhammad Akhtar Chishti v. Ijaz Ahmed and 5 others (1982 CLC 1700) to support this contention. The trial Court treated the said piece of land as assessed to land revenue, accepted the appellants' contention, held them as "owner of the estate", since prior to the impugned sale, and awarded a finding that the respondent, who claimed superior right of pre‑emption merely on account of his qualification, as "owner of the estate" was not clothed with any such right. Consequently, the suit was dismissed by judgment dated 4‑6‑1984. In the first appeal filed by the respondent, challenging the dismissal of his suit, the District Judge differed with the trial Court. He referred to the entries in the jamabandis for the year 1976‑77, 1980‑81, and maintained that the land having become ghair mumkin abadi and lost its character as agricultural land, ceased to be assessed to land revenue. On the authority of Salehon Muhammad and another v. Shera and others (1977 SCMR 297) he came to the conclusion that the appellants, who were owner of 1 kanal of land of ghair mumkin abadi could not claim to be "owner of estate". In view of this finding, the respondent's suit was decreed. The First Appellate Court's judgment is dated 23‑11‑1964.

3. Aggrieved by the judgment of the First Appellate Court, the appellants went in revision before the High Court. In the opinion of the learned Single Judge, the decision of the First Appellate Court did not suffer from any illegality, with the result that under order dated 9‑2‑1985 the revision was dismissed in limine. It is under these circumstances that the appellants by leave to appeal are before us.

4. We have heard the learned Counsel for the parties. It is manifest from the record before us that the sale of the land, evidenced by Mutation No.819, was not for agricultural purposes, but to raise construction thereon. This purpose is also reflected by the entries in the jamabandis. In order to defeat the respondent's superior right of pre‑emption, the appellants or for that matter their predecessor‑in‑interest should have possessed the status of "owner of the estate" at the time of the sale sought to be pre‑empted and continued to hold that right even at the time of institution of the suit and its final decision. But, as already observed, irrespective of the nature of the land at the time of sanction of the mutation, according to the jamabandis for the year 1976‑77, which was in vogue at the time of the sale it. became ghair mumkin abadi.

5. In support of this appeal, the learned Counsel for the appellants has drawn our attention to section 3(9) of the Land Revenue Act, embodying the definition of the term "estate" to contend that the land which is assessed to land revenue, irrespective of its user, does not shed off its character as agricultural land and remains part of the estate. He submitted that the land as originally acquired for residential purposes, but it was not put to that use and referred to the statement of appellant No.2 to the effect that the land was not under construction, but utilized for growing vegetables. In the submission of the learned Counsel the entry in the jamabandi of ghair muinkin abadi did not rob away the agricultural character of the land or denude the appellants of their status as "owner of the estate" within the meaning of sub‑clause "thirdly" of clause `(C)' of section 15 of the Punjab Pre‑emption Act. He thus toed the line of reasoning which influenced the decision of the trial Court.

6. We do not feel persuaded to accept these arguments. It will be seen that the decision of the trial Court is founded on the High Court's judgment in Muhammad Akhtar Chishti's case rendered by one of us (MA. Lone, J.), but as pointed out by the learned Counsel for the respondent, the view taken therein was not approved by this Court in Abdul Rashid and others v. Khurshid Ahmad and others PLD 1989 SC

373. In this judgment, reiterating the law laid down in Salehon Muhammad and another v. Shera and others, it has been maintained that the purchase of Sakai land, recorded as ghair mumkin abadi in the mutation, and as per relevant jamabandi assessed to land revenue does not confer the status of "owner of the estate" on the owner thereof. The learned Counsel for the appellants has vainly endeavoured to distinguish this judgment but we find that the case in hand is squarely hit by the ratio of this judgment. The decision of the First Appellate Court with which the High Court concurred is correct, and there is no valid reason to interfere with it. For the foregoing reasons, this appeal is dismissed, but the parties are left to bear their own costs. AA./F‑286/S Appeal dismissed.