Faqir Muhammad Khokhar, J.--This appeal, by leave of the Court, is directed against judgment dated 23.2.1001, passed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, in Civil Revision No, 255-D of 1987.
2. Late Nek Alam (predecessor-in-interest of the appellants), being owner in the estate, instituted against the respondents a suit for possession through pre-emption of the land measuring 2 kanals and 5 marlas which was sold by one Maqbool Hussain Shah for ostensible sale price of Rs, 85,00/, A Civil Judge, Jhelum, framed necessary issues on the divergent pleadings of the parties, recorded their evidence, and by judgment and decree dated 25.11.1985, decreed the suit of the appellants.
The appeal of the respondents there-against was dismissed by the District Judge, Jhelum, by judgment and decree dated 10.3.1987. Therefore, the respondents filed Civil Revision No, 255-D of 1987 which was allowed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, by the impugned judgment dated 23.2.2001. Consequently, the judgments and decrees of the Courts below were set aside and the suit of the appellants was dismissed, Hence this appeal, by leave of the Court.
3. The learned counsel for the appellants argued that the High Court was not justified in arriving at a conclusion merely, on the basis of recital in the sale-deed that the suit property had been purchased by a ten member committee of its future use as a graveyard and, therefore, the same was not pre-emptible. It was next contended that the suit property was located at a distance of more than three miles from the village abadi of the respondents and that the suit property was a fraction of a joint khata of 17 kanals and 19 marlas of land which hau not been partitioned. It was lastly argued that the suit property continued to be in possession of the appellants and was never used as a graveyard. Therefore, the same was not exempt from pre-emption under the law.
4. On the other hand, the learned counsel for the respondents vehemently contended that it was specifically mentioned in the registered sale-deed that the suit property was sold for the purpose of using the same as a graveyard. Therefore, the suit land was not pre-emptible in view of provisions of Section 5 of the Punjab Pre-emption Act, 1913, under which that no right of pre- emption would exist in respect of the sale of or the foreclosure of a right to redeem (a) a shop, serai or katra; (b) a dharamsala, mosque or other similar buildings. The learned counsel made a reference to paragraph 247 of Mulla's Principles of Mahomedan Law, 17th Edition, 1972, by M.
Hidayatullah, late Chief Justice of India, in that a vendor was entitled to adopt any legitimate device to defeat the right of pre-emption on the ground of contiguity. The learned counsel also relied on the case of the learned counsel for the parties and have also Muhammad Jan versus Suleman and others (PLD 1968 Peshawar 181).
5. We have heard perused the available record. Admittedly, the suit property was never used as a graveyard either at the time of sale or prior thereto. The same continues to be in physical possession of the appellants/pre-emptor as a part of joint khata of agricultural land. There suit property is located at a distance of more than three miles from a different village of the respondents. The mere fact that, in the sale-deed, the sale of the suit land was intended to be for the purpose of establishing a graveyard would not be conclusive evidence as to its character and status. The Civil Court was empowered to go behind the more than of the sale-deed and to determine the true nature of the suit property. In the case of Hqji Mian Muhammad versus Ghaulm Mustafa (PLD 1973 S.C. 394), it was held that the relevant point of time for determining the true nature and character of the property in dispute was the time of its sale when the cause of action in a pre-emption suit arose and the Court was not bound to accept the description as given to the property by the parties to the sale. A some what similar view was taken in the cases of Mawasi and others versus Maya Ram and others (31 P.R. 1901), Mahant Kirpa Singh versus Maya Ram and others (22 P.R. 1911) Jirva versus Buta and others (26 P.R. 1912), Hannumal versus Atna Ram (27 I.C. 799), Jhubbun Lal and another versus Muhammad Umar and another (95 I.C. 675), Sant Singh versus Goband Ram (AIR 1923 Lahore 209) and Gokal Chand versus Sanwal Das and others (AII 1924 Lahore 495). The reference of the learned counsel for the respondents to the case of Muhammad Jan (supra) was inapt. In the said precedent case shamilat land of a person after its dedication, was actually used for a long time as graveyard. Therefore, he was assumed to have ceased to be its owned who could not file a suit for pre-emption in respect of some other land on the basis of ownership in the shmilat deh and contiguity. In the present case the appellants had proved their right of pre-emption over the suit land and the suit of the appellants was rightly decreed by the trial Court as well as by the first appellate Court. Therefore, the impugned' judgment of the High Court is not sustainable at law.
6. For the foregoing reasons, this appeal is allowed and the impugned judgment dated 23.2.2001 of the High Court is set aside.
Consequently, the judgments and decrees of the trial Court as well as that of the first appellate Court are restored. No order as to costs.