1989 PLP 4178 (MLD)

Date of hearing: 2nd April, 1989. This R.S.A. arises out of a suit for pre‑emption decreed by the trial Court in favour of the respondent/pre‑emptor. The appellant's first appeal was partly accepted by the impugned judgment of the learned Additional District Judge, Mianwali dated 5‑7‑1983 whereby a further sum of Rs.66,320 was allowed to him.

2. The main defence to the suit was that the land in question was purchased for residential, purposes, was situate contiguous to the limits of Municipal Committee, Kundian, abutted the metalled road, was surrounded by hotels, shops, houses, Chashma Barrage Colony, and thus having acquired a character of urban property was not pre‑emptible without proving custom.

3. The Courts below concurrently decided this issue against the appellant vendee and as a result decreed the suit.

4. Rana Muhammad Sarwar for the appellant submitted that the Courts below disproportionately relied upon Khasra Girdawari Exh. P.12 in holding the property to be agricultural land, and likewise unjustifiably rested upon the ratio of Hafiz Hasan Muhammad and two others v. Abdul Hameed and two others (P L D 1982 SC 159) as also Mst. Gul Adam v. M. Talib Jan (P L D 1983 Pesh. 127) for confining themselves to the nature of the land shown in the Khasra Girdawari. He disputed the sanctity of the Khasra Girdawari Exh. P.12 on the ground that the respondent being a Patwari had manoeuvred it and further that it was not formally proved through its author as was required in Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and two others (PLD 1973 SC 100). He claimed that the later trend was to keep in view not only the entries made in such a record, but also the location, the surroundings and the various amenities available to see if the land had adopted a character of‑‑urban property. He heavily banked upon the site plan Exh. D.6 which statingly gave the entire picture of the surroundings consisting of contiguity of the property to the Municipal limits, commercial, residential and urbanized nature of the locality. He referred to Lal and others v. Muhammad Sharif (PLD 1961 Lah. 47), Allah Bakhsh v. Ilahi Bakhsh and 3 others (PLD 1975 Lah.359), Elahi Bakhsh and others v. Allah Bakhsh and others (NLR 1980 SCJ 286), Asghar Ali v. Ahmad Nasim and another (1985 CLC 2616) (at p.2619) and Muhammad Ahmad v Jameel Ahmad C.L.C. 1061) to show that overall picture existing around the disputed property was to be kept in mind while determining the true nature thereof. He emphasized that neither the user of the land was a decisive point as held in Dr. Abdul Jamil v. Malik Nazar Mohyuddin (N.L.R. 1988 Civil 20) nor the assessment of the land revenue was something determinative in the context as per Raja Khizar Hayat and others v. Saleh Muhammad (P.L.D. 1986 Lahore 242).

5. Malik Allah Wasaya, for the respondent in reply distinguised Asghar Ali's case and Raja Khizar Hayat's case on the ground that the lands forming subject, matter in those were situated within the Municipal limits whereas the one in dispute here was outside those limits, and similarly Dr. Abdul Jamil's case was inapplicable as it related to establishing ownership of the pre‑emptor in the estate, whereas Muhammad Ahmad's case dealt with a property which consisted of a factory. He insisted that the rule laid down in Hafiz Hassan Muhammad's case relied upon by the Courts below, was quite squarely applicable inasmuch as mere location of the land in urban area was held not to be a sufficient indication of its urban character and that conversely its user as agricultural land was by itself something decisive. He submitted that in the absence of any notification under Section 3(3) of the Pre‑emption Act by the Board of Revenue, there was no idea of claiming exemption in regard to the land from the incidence of pre‑emption.

6. A comparative study of the various authorities, referred to above, would show that the user of the land is still held to be a big index of the character of the property. The Khasra Girdawari Exh. P.12 was unreasonably questioned on the ground of having been manoeuvred by the respondent with the help of his status as Patwari. The suggestion was bereft of any support from the record. The respondent, of course, did not appear in the witness box, but he may have been called at the instance of the appellant in order to explain how he exerted influence on the local Patwari to manipulate an entry in the Khasra Girdawari showing the property as agricultural land. In fact the appellant's own witness D.W.2 frankly admitted that the land in question was agricultural like all others surrounding it. The Local Commissioner tried to state that a few Kholas existed in the land, suggesting thereby that it was not used for agricultural purposes, but he did not make any such disclosure in the site plan Exh/D.6. The appellant appeared as D.W.3 himself and admitted that there was no construction on the site which lay as a plain plot. This evidence pre‑eminently sufficed to establish that the land was actually being used for agriculture and that there was no construction on it. The authenticity of the Khasra Girdawari Exh. P.12 was rather reassured by the appellant's own evidence. The plea that it was not formally proved was not enuring, in that it was a certified copy of public record as defined in Article 85 of the Qanun‑e‑Shahadat, 1984. However, it was altogether a different thing whether or not it claimed a presumption of truth, but it could be admitted per se without examining its author under Article 90 of the Qanun‑e -Shahadat. The entries made therein were relevant under Article 49 ibid.

7. The contention that the reliance on Hafiz Hassan Muhammad's case was misplaced, could not be accepted implicitly, nor was it all true that the later trend of authorities made the surroundings alone a determinative index in regard to the character of the property. The authorities cited in support of the so‑called later trend were distinguishable mostly on the ground that those related to lands situate within the Municipal limits. 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. This 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. It did, however, refuse the appellant's prayer for spot inspection but the same too did not sound implausible. The reason presumably was that sufficient evidence was brought on the record by either party. Even otherwise, local inspection was not a vested right though it may have been helpful as remarked in Lal's case. The matter was quite discretionary and does not call for interference.

8. As a result the appeal is dismissed leaving the parties to bear their own costs. H.B.T./T‑67/L Appeal dismissed.