MUHAMMAD MUZAMMAL KHAN, J.---Instant civil revision assailed the judgment/decree, dated 15- 2-2000 passed by the learned Additional District Judge, Gujrat, whereby appeal of the respondents was accepted and by reversing the judgment/decree, dated 30-6-1991 passed by the learned Civil Judge, suit of the petitioner was dismissed with no order as to costs.
2. Succinctly, relevant facts are that the petitioner on 13-11-1974 filed a suit for possession through pre-emption against the sale of suit-land vide Mutation No.150 dated 15-11-1973. The petitioner pleaded that he had superior pre-emptive right qua the respondents; being the nearest collateral of the vendor, co-sharer of the Khata in question and an owner of the Estate where suit-land is situated. He further averred that market value of the suit-land is not more than Rs.2,000 but the same was inflated to Rs.5,000 in order to defeat his pre-emption rights.
3. Respondents being defendants in the suit contested the same by filing their written statements, denying the narrations in the plaint. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. After doing the needful, the learned Civil Judge who was seized of the matter, decreed the same vide his judgment/ decree, dated 24-9-1975 subject to payment of Rs.4,000 by the petitioner.
4. Respondents felt aggrieved of the judgment/decree dated 24-9-1975 consequently filed an appeal before the learned Additional District Judge which was accepted on 7-11-1978 and the case was remitted to the trial Court for fresh, decision after recording of further evidence of the parties for determination of the dispute about falling of suit-land within the municipal limits of Gujrat and its pre-emptibility, on this count. In post-remand proceedings the petitioner again appeared as his own witness as P.W.1/1 and produced a copy of notification extending municipal limits, as Exh.P.1./1 in his evidence. Respondents examined Akhtar Hussain Patwari, as D.W.1 and produced a copy of notification Exh.D.A./1. The then learned Civil Judge again decreed the suit of the petitioner on 25-9- 1980, holding that suit-land was pre---emptible and the petitioner had a superior pre-emptive right qua the respondents.
5. Respondents were not satisfied with the decision of the trial Court dated 25-9-1980 and they filed an appeal before the learned Additional District Judge which was again accepted and the case was remanded for fresh decision on issues Nos.1 to 4 by the trial Court vide judgment/decree dated 9-6-1982. The learned Civil Judge recorded the statement of Muhammad Shafi Patwari, Municipal Committee, Gujrat, as C.W.1 on 13-11-1984 whereafter suit of the petitioner was again decreed on 19- 11-1984 subject to payment of Rs.5,000 as sale price.
6. Respondents for the third time went in appeal before the learned Additional District Judge who again accepted the same and remanded the case for recording of further evidence/fresh decision on the point as to whether the suit-land was within the Municipal limits and as such was pre- emptible or not pre-emptible. Trial Court in compliance of the appellate judgment, recorded the statement of Khadim Hussain as D.W.1 besides which respondents also produced two documents, i.e. (Exh.D.2 and Exh.D.3). The petitioner also produced a copy of Jamabandi for the year 1974-1975 as Exh.P.8 whereafter suit of the petitioner was again decreed on 30-6-1991. Respondents filed an appeal before the learned Additional District Judge where they succeeded as their appeal was accepted and the suit of the petitioner was dismissed vide appellate judgment and decree dated 15-2-2000. The petitioner, thereafter, filed instant civil revision with the prayer noted above, which was admitted to regular hearing. The respondents in response to notice by this Court have appeared and were represented through their counsel.
7. The learned counsel for the petitioner contended that the petitioner's suit having once been decreed, extension of municipal limits would not save the land from the process of pre-emption. It is further submitted that by issuance of notification dated 14-10-1976 nature of suit-land was not changed as the same continued to be agricultural and liable to payment of land revenue.
According to his submissions, suit-land having not been converted into buildings site, remained subject to the process of the pre-emption law; thus, appellate Court fell to an error of law in dismissing the petitioner's pre-emption suit. The learned counsel for the petitioner referred to the judgments in the cases of Mst. Bibi Jan and others v. Miss R.A. Monny and another PLD 1961 SC 69 and Abdul Haq and 4 others v. Sardar Shah and others 1994 SCM R 1238 in support of the formulations made on behalf of the petitioner.
8. The learned counsel for the respondents refuted the submissions of the petitioner, supported the appellate judgment/decree and urged that the suit-land had attained character of urban immovable property, having been converted into building site, the same was not subject to suit under section 15 of the Punjab Pre-emption Act, 1913. It was further submitted that the respondents had purchased the suit-land for non-agricultural purposes i.e. For raising constructions hence, the same was not pre---emptible. It was also emphasized that all the amenities of life which are available within the urban areas like .Roads electricity, telephone and Banks facilities, were also available to the suit-land, at the time of filing of the suit by the petitioner and thus it could not have been decreed even in absence of extension of Municipal Limits vide Notification No. SO- II(LG)RWP(3)35, dated 14-10-1976. It was argued on behalf of the respondents that Appellate Court having committed no illegality in terms of section 115, C.P.C.; the view formed by the Appellate Court cannot be interfered in the revision petition in hand.
9. I have heard the learned counsel for the parties and; have examined the record, appended herewith. Though learned counsel for the respondent had objected to maintainability of civil revision on the ground that certain copies of Revenue Record produced before the trial Court (Exh.P.8 and Exh.D.3) were not appended with the civil revision but this case related to year 2000 and having been admitted to regular hearing, I am not inclined to dismiss this civil revision on technical grounds and opted to examine those documents out of brief of the learned counsel for the parties.
10. In this case sale of land measuring 2 Kanals through Mutation No.150, dated 15-11-1973 was subjected to law of pre-emption under Punjab Pre-emption Act, 1913 by the petitioner through his suit for possession through pre-emption, filed on 12-11-1974. This civil revision has arisen in 5th round of litigation and petitioner's suit on each of 4 occasions was decreed by the trial Court and it having been for the first time decreed on 24-9-1975, much earlier to the target date fixed in the case of Government of N.-W.F.P. Through Secretary Law Department v. Malik Said Kamal Shah 1986 PSC 1241, thus, controversy between the parties has to be resolved on the touchstone of old law of pre-emption i.e. Punjab Pre-emption Act, 1913. The material question stressed by the parties, related to pre-emptibility of the disputed sale, on account of inclusion of land subject of it, within municipal limits of Gujrat. Besides lawful reasons, which weigh with the first Appellate Court to conclude that pending suit, municipal limits of Gujrat were extended and the suit-land was included in those limits, there was ample evidence on the file to conclude that it was included in the municipal limits, after decision in favour of the petitioner for the first time by the trial Court.
Jamabandi for the year 1974-75 (Exh.D.3) clearly proved the fact of inclusion of suit-land within municipal limits. C.W.1 Muhammad Shafiq Patwari while in witness-box deposed that "red line" on Exh.D.A./1 was drawn by him to show municipal limits in terms of Notification No.50-II(LG)RWP(3)35, dated 14-10-1976. Copy of Khasra Girdawari (Exh.P.8) produced by the petitioner in rebuttal evidence, was not enough to displace the impact of documentary evidence on the file in support of stance of the respondents because Khasra Girdawari only related to possession of land in question and had nothing to do with municipal limits, hence findings of the appellate Court touching inclusion of suit-land in municipal limits pending pre-emption, were not susceptible to any exception. Submissions of the learned counsel for the petitioner that pre-emption suit having once been decreed by the trial Court, Notification dated 14-10-1976 would not defeat the pre-emption suit as it cannot be given retrospective effect, are not unfounded, for the simple reason that pre- emptive right having already accrued, exercised and acknowledged by the Court through its decree, could not have been taken away, through any notification and that too, retrospectively contrary to the law laid down by the Honourable Supreme Court in the cases of Mst. Bibi Jan (supra) and PLD 1978 SC 190. As a matter of fact, the real controversy which hinged for determination was as to whether suit property at the time of it's sale was rural or urban and if it was rural/agricultural land then whether in spite of inclusion of suit property within municipal limits, it retained its agricultural character or having attained character of Urban Immovable Property, stood excluded to be pre-empted on a suit under section 15 of the Punjab Pre-emption Act, 1913 and became subject to any such right tinder section 16 of the Act (ibid).
11. A Division Bench of this Court earlier approved the view of the learned Single Judge in Chamber of this Court, in the case of Salamat Rai v. Khushi Ram 45 I.C. 887, to the effect that inclusion of land in municipal limits would not necessarily mean that it had become part of the town and its nature regarding pre-emptibility had to be decided in each case. It was also held that pre-existing character of land can change by its absorption in Urban Area, through Letters Patent judgment reported as Shankar Das v. Mathra Das and another 55 I.C. 520. Thereafter, two Division Benches of this Court affirming principle of non-maintainability of pre-emption suits under section 15 of the Act, against urban properties, laid test for determining character of the lands lying in suburbs of a town, in the cases of Diwan Chand v. Nizam Din and another AIR 1924 Lah. 662 and Sheikh Abdul Rehman's v. Khan Sahib Haji Rashid Ahmad AIR 1937 Lah.
182. Both these judgments also held that properties occupied by persons engaged in commercial pursuits, rural areas in the vicinity of a town, grow into suburb of the town and would be governed by rules applying to urban properties.
Yet another judgment by a Division Bench, i.e. Lal and others v. Muhammad Sharif PLD 1961 (W.P.)
Lah. 47 which also related to outskirts of Gujrat Town, considered the-entire case-law and propounded that in spite of inclusion of land in municipal limits, its natural/character has to be determined in view of facilities/amenities available to it and held, site in that case was surrounded by Governmental and private buildings with metalled roads, electricity etc., was located at a distance of one mile from Gujrat Town and three furlongs from District Courts thus, was no longer a part of village immovable property for the purposes of section 15 of the Punjab Pre-emption Act, 1913. This aspect of the matter also got approval of the apex Court of this country in the cases of Nazir Abbas v. Manzoor Haider Shah PLD 1989 SC 568 and Abdul Haq and 4 others v. Sardar Shah and others 1994 SCM R 1238. In these judgments the Honourable Supreme Court mandated that essential factors for determining character of property would be whether locality had been provided with water supply, distance of suit-land from the Courts, construction of houses in the vicinity served with street lights and imposition of tax on transfer of property etc. Decisions about attaining urban character of suit property, returned by first Appellate Court and this Court, were not found to suffer from any infirmity.
12. None of the Courts below in any of the rounds of litigation, exerted to resolve this pivotal point. I have no doubt that under old pre-emption law, properties though not included in municipal limits and lying in the suburbs of big cities where all the facilities of urban life were available, were not subject to process of pre-emption under section 15 of the said Act. Since I have already held that suit-land stood included in municipal limits of Gujrat, which proved that suit-land is just near to the city of Gujrat, thus, I proceed to determine its character of being agricultural or urban. Copy of Mutation No.150, dated 15-1-1973 (Exh.P.2) carried a note that land is being sold for residential purposes and the vendees are not owners in the estate. Suit-land measured 2 Kanals by its area, could not be treated as agricultural especially when the same was sold to non-proprietors of the estate, for the simple reason that such small piece of land could not have been brought under plough by a stranger to the village. Respondents had produced two witnesses including his own statement as D.W.2. D.W.1 Khadim Hussain was a resident of the vicinity since 25/26 years and had installed a Saw Machine near to the suit-land. This witness deposed that one side of the suit-land is populated and all the amenities of urban life, like metalled roads, shops, hotels, clinics, electricity sui gas, telephone, schools etc. Were available around the land sought to be pre-empted by the petitioner. This witness further deposed that land in question has been included in municipal limits of Gujrat and that disputed property is situated at a distance of only 300 feet from the G.T. Road.
Similar is statement of D.W.2 who narrated that all the facilities available in the cities/towns, were also available to the land subject of suit and he also detailed the available amenities. Petitioner in spite of lengthy cross-examination of both these witnesses could not succeed in shattering their veracity and did not put any question about the facilities amenities claimed to be available to the suit property in the examination-in-chief of both these witnesses. This lapse of the petitioner to cross-examine both these witnesses on this aspect of the matter, led to rise a presumption that he admitted that those facilities were available to the suit property and in its vicinity. Petitioner while appearing as P.W. Though deposed that land subject of his suit is located out of municipal limits but tenor of his replies to questions in the cross-examination, revealed that he intentionally avoided to answer those, by saying that he is not aware of the fact that "Baghdad Colony" abuts G.T. Road and is adjacent to Jamia School or that what is the distance between overhead water tank of Baghdad Colony and Jamia School etc. Petitioner's cross-examination and his replies if read in conjunction with statements of D.Ws.1 and 2, leads one to conclude that suit-land is located within constructed/ populated area where all the facilities of life i.e. Roads streets, electricity, shops, hotels, clinics, sui gas, telephone and schools etc. Were available and it had attained the colour of urban immovable property at the time of its sale and thus, was not pre-emptible under section 15 of Punjab Pre-emption Act, 1913, even if included in municipal limits after decree in favour of the petitioner.
13. For the reasons noted above, net result of appellate Court vide judgment dated 15-2-2000 being just/lawful required no interference in revisional jurisdiction of this Court, thus, this petition being devoid of any merit, is dismissed with no order as to costs.