This regular second appeal arises out of a suit for pre-emption brought by the respondent, Wahid Bakhsh against the appellant, Rahim Bakhsh. It was decreed by a Civil Judge of Dera Ghazi Khan.
The respondent assailed the judgment and decree of the learned Civil Judge by means of an appeal which was dismissed by the learned District Judge, Dera Ghazi Khan. He has, therefore, come up in second appeal to this Court.
2. The only finding of the two Courts below which has been questioned before me is with regard to the superiority of the right of pre-emption of the respondent. He claimed the right of pre-emption against the appellant on the ground that he was a co-sharer of the land involved in the suit and was also an owner of the estate in which the suit land was situate. According to him, the appellant did not possess any of these two qualifications. The learned Civil Judge upheld the aforesaid plea of the respondent and his finding was also affirmed by the learned District Judge.
3. Learned counsel for the appellant contended that the appellant purchased the land in dispute for building a house thereon and, therefore, the suit for pre-emption was not competent. He did not refer me to any evidence showing that the appellant purchased the disputed land for the aforesaid purpose. Even if it is assumed that he got this land for residential purpose it would not operate as a bar to the suit for preemption brought by the respondent. Section 15 of the Punjab Pre-emption Act, 1913 enables an owner of an estate to pre-empt a sale in regard to the agricultural land forming part of that estate as well as the village immovable property connected therewith. Therefore, as an owner of the estate the respondent had a right to pre-empt the sale of the suit land regardless of the fact that it will continue to be the agricultural land or will be built upon for residential purpose. I, therefore, see no force in the argument advanced by the learned counsel for the appellant that since the land in question has been purchased by the appellant to meet his residential requirements it could not be pre-empted by the respondent.
4. It was next urged by the learned counsel for the appellant that the appellant was also an owner of the estate, and, therefore, the respondent being another owner of the estate did not have a right of pre-emption against him. It is not disputed that before purchasing the land in dispute, the appellant purchased another piece of land in the estate in which the land involved in the present case is situate but, admittedly, he has constructed a house on the land purchased by him earlier.
The view taken by the two Courts below, therefore, is that by making a house on the land previously purchased by him the appellant ceased to be an owner of the estate. Learned counsel for the appellant submitted that out of six marlas of land previously purchased by the appellant he utilised three marlas of land for constructing a house thereon but was using the remaining three marlas as agricultural land and thus he continued to be an owner of the estate. As against, this the respondent's contention is that the entire land measuring six marlas was being used by the appellant as a house inasmuch as three marlas out of that land were covered by the superstructure of the house raised by the appellant and the remaining three marlas were being used by him as courtyard of the house. The appellant did not produce copy of khasra girdawari or any other revenue record to show that three marlas of land which did not bear the superstructure were, in fact, being used by him for agricultural purpose. I. Therefore, see no good reason to disturb the concurrent finding of the two Courts below that on the land previously purchased by the appellant be had constructed a house and, therefore, he cannot be considered as an owner of the estate. The case of Shah Muhammad v. Mst. Piari and others AIR 1936 Lah. 202 is an authority on this point. It has not been disputed by the learned counsel for the appellant that the respondent is an owner of the estate. Therefore, he has a right of pre-emption against the appellant.
5. No other point was canvassed by the learned counsel for the appellant and since the contentions raised by him are devoid of force, the appeal is dismissed in limine.