The facts giving rise to the filing of instant civil revision are that a plot measuring 16-marla comprising of Khewit No. 190, Khatoni No. 500, Khasra No 1901/1673 situated in Pakki Thathi, Lahore was owned by Muhammad Din and Siraj Din, predecessor-in-interest of Respondents Nos. 8 to 19. If was purchased by Muhammad Aslam for an ostensible sale price of Rs. 8800/- through sale-deed executed on 11.5.1964. Muhammad Din predecessor-in-interest of Respondents Nos: 8 to 19 filed a suit for preemption against the said sale under Punjab Pre-emption Act, 1913 on the ground of his being collateral of the vendor, owner of the estate, as well as co-sharer of the land in dispute. The said suit was contested by Muhammad Aslam vendee, by filing written statement, in which he alleged that the property in question was an urban immovable property and since at the relevant time no custom of pre-emption was in vogue in the area within the meaning of Section 7 of the Punjab Pre-emption Act, 1913, hence, the preemptor had got no right to pre-empt the said sale and the suit was liable to be dismissed. Further prayer for compensation in lieu of improvements of the suit property, etc- was also made. The learned trial Court keeping in view the constesting pleadings of the parties framed the following issues and invited the parties to produce their respective evidence:-- Issues:
1. Whether the land in dispute is urban immovable property? OPD.
2. If Issue No. 1 is proved ill affirmative, whether the valuation of the suit for purpose of Court fee and jurisdiction is correct, if not, what is the correct valuation? OPP. '
3. Whether the defendant has effected any bona fide improvement on the land, if so, to what extent and what is its effect on the suit? OPD.
4. Whether the plaintiff has got superior right of pre-emption? OPP.
5. What is the market value of the suit land? OP-Parties.
5-A. Whether the plaintiff has waived his right of pre-emption? OPD.
6. Relief.
On the conclusion of the trial, the learned Civil Judge, Lahore vide judgment dated 24.3.1985 decreed the suit on payment of total amount of Rs. 88000/-. Against the judgment and decree of the learned trial Court, appeal filed by the present petitioners was also dismissed by the learned Additional District Judge, Lahore on 26.2.1992. Both the above judgments and decrees have now been assailed through this civil revision.
2. The only point agitated and stressed upon by the learned counsel for the petitioners is that, both the Courts below acted illegally and with material irregularity by treating the suit of the pre-emptor under Section 15 of the Punjab Pre-emption Act, 1913, whereas, it is established on the record that disputed property was in fact urban immovable property at the time of sale, therefore, the matter should have been decided in terms of Section 16 of the Punjab Pre-emption Act, 1913 and further that in the absence of any evidence on the record that custom of pre-emption was in vogue at the time of enforcement of Punjab Pre-emption Act, 1913 in the locality, where the property was situated, the two courts below were bound to dismiss the suit within the meanings of Section 7 of the said Act. In addition to the above contentions, learned counsel has argued that since the main pre-emptor Muhammad Din had died during the pendency of the suit, the right of preemption being not heritable, his suit had abated and was liable to be dismissed in the light of law declared by the Hon'ble Supreme Court in the case of "MALIK GHULAM NABI and others versus MEMBER (III), BOARD OF REVENUE and 5 others" (PLD 1990 S.0 1043).
3. On the other hand, learned counsel for the respondents has argued that the two Courts below have recorded concurrent findings of fact about the nature of property in dispute at the time of sale and as the findings of two courts below neither suffer from any misreading or non-reading of evidence nor entail any jurisdiction defect, therefore, this Court while sitting in revisional jurisdiction is not supposed to interfere with such findings.
4. I have considered the arguments of learned counsel for the parties, examined the record with their assistance and gone through the cited case law minutely.
5. Before proceeding further, first I would like to take up the objection of learned counsel for the petitioners with regard to maintainability of the suit after the death of original pre-emptor. The case-law referred by the learned counsel relates to the suit arising out of British Balochistan Civil Justice Regulation, 1896. whereby it was provided that "any question regarding succession, inheritance, pre-emption, etc. in Balochistan had to be decided in accordance with Muslim Law, where the parties were Muslim." It was therefore, held that since under the Muslim Law the death of pre-emptor during the pendency of pre-emption suit extinguished the right of pre-emptor to sue after his death, hence, the suit filed by the pre-emptor could not be prosecuted by the heirs of the deceased pre-emptor. But, admittedly , the present suit was filed not under the Muslim Law but in terms of Punjab Pre-emption Act, 1913 and there is no doubt at all under the said Act that right of pre-emption was heritable whether based on proprietary qualification or on relationship. 'ALLAH DAD and others versus HUKAM DAD and others" (PLD 1960 (W.P) Lahore 900-Full Bench) is an authority on the subject. Hence, the objection of the learned counsel for the petitioners is overruled, being not legally sustainable.
6. On the question of nature of property at the time of sale i.e. it was urban immovable property, hence, the suit should have been decided in terms of Section 16 read with Section 7 of the Punjab Pre-emption Act, 1913, it has been argued by the learned counsel that when the property in-dispute was sold, it was situated within the municipal limits of Lahore and the same being not agricultural land at the time of sale, had thus assumed the character of urban immovable property and by not holding so, the two Courts below have ignored the evidence led by the- petitioners on this point. His contention is that vide Notification No. 3925-C/39-2767 dated 24.8.1939, the revenue estate of Pakki Thathi was included in municipality of Lahore, hence, in terms of Notification No. 1491-R dated 16.6.1941 issued by the Government of Punjab, the sale in question was excluded from right of preemption. But, this contention has already been sufficiently met with by the learned Additional District Judge in his judgment. The relevant paragraph No. 17 is reproduced as under -- "It may be mentioned here that an objection was taken by Defendant No. 1 in the written statement to the effect that the suit land was not pre-emptible on account of a Government Notification. No issue was framed by the learned trial Court on the basis of that objection nor any mention was made in the judgment of the learned trial Court with regard to the same. I have not thought it proper to remand the case to the learned trial Court for giving findings on this point because the case had remained pending before the learned trial Court over the years and in case it was remanded again to the learned trial Court it would have resulted in failure of justice. I have myself gone into this question at the time of arguments.
Notification No. 1491-R dated 16.6.1941 of the Government of Punjab reads as under:-- "In supersession of Punjab Government Notification No. 15926 dated 11th May, 1920; and in exercise of the powers conferred by Section 8(2) of the Punjab Pre-emption Act, 1913 the Governor of the Punjab is pleased to declare that no right of pre-emption shall exist within the boundaries of the Lahore except in respect of the following areas, namely:-- (a)So much of the city of Lahore as lies within the Circular Road; (b)The area lying between the Chhota Ravi and the Ravi; (c)The area included in the estates of Ganja Kalan, Sanda Kalan, Sanda Khurd, Qila Hakiman and Rajgarh.
(d)Those estates and portions of estates included in the Municipal limits of Lahore by Punjab Government Notification No. 3935C-39-2767 dated tle 24th August, 1939, which prior to the date of the said notification were not included in the Municipality of Lahore."
The Notification No. 3935-C-39-2767 dated the 24th August, 1939 had included revenue estate of Pakki Thathi within the Municipality of Lahore. As such, under Notification, dated 16.6.1941 the revenue estate of Pakki Thathi was not exempted from operation of law of pre-emption. As such, the objection of Defendant No. I raised in the written statement to that effect was of no avail and cannot be accepted."
The learned counsel has not been able to point out any evidence or law in order to controvert the above findings of the learned Appellate Court on Issue No. 2, which are accordingly maintained.
7. Besides the above arguments, learned counsel for the petitioners has tried to refer oral evidence in order to prove that property in dispute at the time of sale had assumed the nature of urban immovable property but the same is neither convincing nor confidence inspiring in order to set- aside the concurrent findings of two courts below. I am therefore, satisfied that the findings of two courts below are neither based on misreading or non reading of evidence nor the same suffer from any jurisdictional defect, calling for . interference in revisional jurisdiction. This Civil Revision therefore, fails and is accordingly dismissed, leaving the parties to bear their own costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.