1994 PLP 52 (SCMR)

Date of hearing: 7th November, 1992. SHAFIUR RAHMAN, J.‑‑‑Leave to appeal was granted to examine whether the Revenue Record had been misread while arriving at the finding that the land sold was village agricultural land and as such pre‑emptible. 2. 7 Kanals 8 Marlas of land in village Kundian was. sold alongwith a share in the Shamilat by a registered deed dated 21‑10‑1978 against which a pre‑emption suit was filed by the respondent. In resisting the suit it was stated that the land adjoined the Town Committee, Kundian and had built up houses and shops around and had been acquired for purposes of constructing residential houses and as such it was not pre‑emptible. This objection was reflected in Issue No. 1 "whether the suit land is exempted from the law of Pre emption". The trial Court recorded the finding of fact on this Issue as hereunder:‑‑ "Perusal of Khasra Girdawari Exh. P. 12 transpires the land in suit is recorded as cultivatable and entry for Kharif 1978 and Rabi 1979 reveals that the crops of Mungi and wheat were cultivated. Moreover, it has come on record that the suit land is not within limit of Town Committee. As such the sale is subject to pre‑emption. The contention raised . by the learned counsel for the plaintiff has substance and requires consideration. In view of the fact, that the suit property is not adjacent even to the Urban area and out of Town Committee limit and the Court has to see the nature of the land at the time of sale. The mere fact, there is hotel or shop adjacent to the disputed land in no way changes the nature of land as these facilities are even available in the far‑off village. In view of the matter, I am constrained to hold that the alleged sale is subject to pre‑emption."

3. An appeal was taken to the District Court which was disposed of by the Additional District Judge upholding the finding in the following words: "Sale‑deed EA. D.1/Exh. P.1 was registered on 21‑10‑1978. Khasra Girdawari Exh. P.12 relates to the two subsequent crops relating to Kharif 78 and Rabi

79. The suit land was under cultivation in both the '~ said crops. D.W. 2 Faiz Ullah admitted in his cross‑examination that t the suit land as well as the pieces of land near it were under cultivation. The same assertion was made by respondent Ghulam Hussain. The contents of Khasra Girdawari and admission of the witness of appellant undoubtedly prove that the suit land was still under cultivation." This was the main contention in Regular Second Appeal before the High Court and thereto the appellant did not succeed, the High Court observing as hereunder:‑‑ "Admittedly the land in dispute was outside those limits and this singular distinction would mean much. The fact remains that various crops were being sown in the land at the time of sale and its user as such was the largest single incidence of proving it to be agricultural land. This was the rule envisaged in Hafiz Hasan Muhammad's case. The lower appellate Court further noted that there was no electricity, no school, no hospital nor any other amenity available in the vicinity. I don't think there was any misreading of evidence on the part of the said Court, nor did it appear to be capricious in its appraisal of the evidence."

4. We have examined the Revenue Record as well as the evidence led at the trial with the assistance of the learned counsel for the parties. The right of pre‑emption under section 4 of the Pre‑emption Act extends to agricultural land, village immovable property and urban immovable property. All these terms have been defined in section 3 of the Pre‑emption Act. The various sub sections of section 3 'define them as hereunder:‑‑ "(1) agricultural land' shall mean land as defined in the Punjab Alienation of Land Act, 1900 (as amended by Act I of 1907), but still not include the rights of a mortgagee whether usufructuary or not, in such land; (2) Village immovable property' shall mean immovable property within the limits of a village, other than agricultural land; (3) Urban immovable property' shall mean immovable property within the limits of a town, other than agricultural land. For the purposes of this Act, a specified place shall be deemed to be a town‑‑(1) if so declared by the Board of Revenue by notification in the official Gazette, or (b) if so found by the Courts;"

5. Khasra Girdawari shows that the land was located within a village, that it was irrigated by canal, that crops were grown on a major portion of it when it was sold. It had remained continuously under cultivation. Only a very small portion of it was shown at times to have a superstructure. That could be as well for the purposes of agricultural itself. The deed of purchase also shows that share of Shamilat corresponding to this agricultural land was also purchaser and that there was not such superstructure on any defined area of the property.

6. In the circumstances the finding of fact recorded by all the three Courts is not shown to be against the record or in violation of any principle governing the appreciation of evidence. No case is made out for our interference and the ‑appeal is dismissed with nor order as to costs. AA./T‑91/S Appeal dismissed.