' MUHAMMAD KHALID ALVI, J.---Through this single judgment, I propose to decide Regular Second Appeal No,118 of 1981 and Regular Second Appeal No, 29 of 1982 as common questions of law and facts are involved in both the cases.
2. Brief facts of the case are that land measuring 92 Kanlas situated in Chak No,445/E.B., Tehsil Burewala (Previously Tehsil Vehari) was sold through registered sale-deed dated 24-3-1973, which was reflected through Mutation No,163 of attested on 21-4-1973 in favour of respondents Nos.1 to 6.
This sale was sought to be pre-empted by the appellant Ch. Nazir Ahmad and respondents Nos.7 to 13 by way of filing their respective suits on 19-3-1974 and 25-3-1974. Both the suits were consolidated and the proceedings were conducted in the suit filed by the appellant Ch. Nazir Ahmad. Both the rival pre-emptors claimed superior right on the basis of being owner of Estate.
The suits were contested by respondents Nos.1 to 6/vendees. The learned trial Court after recording evidence of all the parties vide judgment and decree dated 25-2-1979 decreed both the suits in the ratio of 50% in favour of each set of pre-emptors. Vendees/respondents Nos.1 to 6 preferred appeal on 5-3-1979, which was allowed by the learned District Judge, Vehari vide judgment and decree dated 15-9-1981 and reversed the findings of the learned trial Court on Issues Nos.1, 5 and 8. It was held that the pre-emptors lack superior right as against vendees. It was also held that pre A emptors had not deposited the requisite court-fee within the period of limitation thus their plaint was liable to be rejected under Order VII, rule 11, C.P.C. And also held that in view of the fact that during the pendency of the suit some portion of the land had been notified to be within the limits of Burewala Municipal Committee, therefore, the same has ceased to be preemptible. This judgment and decree is being separately challenged by the two sets of pre-emptors through the instant two appeals.
3. Learned counsel representing the appellants in both the appeals contended that land measuring 16 Kanals situated in Chak No,445/E.B was allotted to one Suba son of Dasondi through R.L.II (Exh.P.9) in the year 1951. This land was sold by said Suba son of Dosandi to Ch. Nazir Ahmad appellant and his two brothers namely Muhammad Yousaf and Abdul Rehman. Muhammad Yousaf being predecessor-in-interest of respondents Nos.7 to 13 (Appellants in Regular Second Appeal No,29 'of 1982) through Mutation No,290 attested on 31-3-1962 which is Exh.P.3. It is further submitted that above named three brothers 'also purchased a lot (State land) measuring 19 acres in the same village but on account of some default in payment of rent etc., the said lot was resumed, while resuming 16 Kanals of land purchased by them from Suba was also included in resumption of 19 acres of State land on 20-10-1970. Later on the same was challenged by the appellants, the Collector vide order dated 21-10-1974 allowed the correction of said illegal order whereby 16 Kanals land purchased by the appellant from Suba was excluded from the purview of the State land. It is further added that Muhammad Yousaf predecessor-in-interest of respondents Nos.7 to 13 died in the year 1972, however, his mutation of inheritance in favour of the said respondents was attested on 24-11-1974 bearing No,207. The fact of death in the year 1972 was disclosed by P.W.1 in his examination-inchief, which fact was not checked in the cross-examination, therefore, the year of death i.e,, 1972 becomes undisputed and his legal heirs i.e, respondents Nos.7 to 13 shall be deemed to have become owners to the share of Muhammad Yousaf deceased since 1972 i.e, prior to the sale. It is further added that Suba son of Dasondi was a confirmed allottee/permanent transferee having full ownership right, had transferred his land in favour of the appellants, therefore, on the basis of this transaction all the appellants were owner in estate. In support he has referred and also reproduced by the learned trial Court judgment reported as PLD 1973 SC.347.
4. With respect to Issue No,5 which pertains to the valuation of the suit and payment of court-fee, it is argued that findings were recorded on the basis of judgment of the Honourable Supreme Court reported as PLD 1970 SC 821 whereas in the meanwhile the Honourable Supreme Court in case PLD 1984 SC 289 has given a different view whereby the question of limitation in the delayed payment of court-fee was held to be not applicable.
5. With respect to Issue No,8 it is submitted that even if some portion of the land in dispute was included in municipal limits through a notification on 7-5-1975, it would not mean that by mere inclusion of a certain area within the municipal limit it would lose its agricultural character and would acquire urban character. There is nothing on record to indicate that the said piece of land had lost its agricultural character and had acquired urban nature. Relies on PLD 1982 SC 159.
6. On the other hand, learned counsel for respondents Nos.1 to 6 contends that plaintiffs are required to maintain their superior pre-emptive right at three crucial stages i.e,, on the date of sale, filing of the suit and at the time of decree. To substantiate his this submission he submits that on 20-10-1970 the land purchased by the appellants from Suba was resumed from their name and it was only on 21-10-1974 i.e,, the order passed by the Collector Exh.P.8 that correction was made.
During this period the appellants/plaintiffs were not recorded as owners in the revenue record. With reference to 1972 SCM R 357 it is argued that pre-emptor in order to succeed has to show, without any shadow of doubt, his full proprietary ownership in the land, on the basis of which he, claims his superior right. To elaborate his argument it is submitted that in Exh.P.1 in the column of ownership and also in the column of possession Provincial Government is recorded. It is only in the column of remarks that the names of the appellants have been mentioned. With reference to Exh.P.2, it is submitted that appellants are recorded in the column of possession but as a tenant. With reference to Exh.P.6., it is submitted that despite there being an order of correction dated 21-10-1974 in Mutation No,206, the appellants were recoded as tenants under section 15 of the Colonization of Government Lands Act, 1912, their status of full owner never matured. It is also argued that although it was an evacuee land but the appellants could only be given the rights which were available to the evacuee at the time when it was taken over by the Central Government. According to him the evacuee sitting before partition on the land purchased by the appellants was a tenant under the Colonization of Lands Act, 1912 and until and unless all the dues are cleared by such tenants under section 15, his status would remain that of a tenants. It is thus concluded that appellants having purchased such rights were also a tenant and we as such recorded in the revenue record and have not acquired full P.Rs, It is further argued that according to Exh.P.1 Column No,6 land claimed by the appellants on the basis of which they are claiming superior right is recorded as "Banjar Qadeem". It is neither a land revenue paying piece of land nor it is cultivable, therefore, on the basis of such land and status of owner of estate cannot be claimed. Relied on 1987 CLC 101.
7. With reference to Issue No,5 and keeping in view the development of law reflected through PLD 1984 SC 289 learned counsel for respondents Nos.1 to 6 has shown grace by not opposing the arguments advanced by the learned counsel for the appellants.
8. I have considered the arguments of the learned counsel for the parties.
9. Exh.P.9 is the R.L.II on the basis of which Suba became a confirmed allottee/ permanent transferee. He through Mutation No,290 dated 31-3-1962 Exh.P.3 sold his title in favour of three brothers namely Abdul Rehman, Muhammad Yousaf and Ahmad. In the said document the ownership is recorded in the name of Central Government. Once the evacuee left Pakistan the land in whatever capacity was held by the evacuee fell in the ownership of the Central Government who under the settlement law was well within its rights to transfer the same in the name of the claimants with full P.Rs, irrespective of the status of the land vis-a-vis the evacuee. Once the land was confirmed in favour of Suba he became full owner of the land with full P.Rs,, which he transferred in favour of three brothers. On account of a mistake committed by the revenue hierarchy the provincial land measuring 19 acres which was a lot purchased by Nazir Ahmad etc., was resumed for some reasons and the land owned by the appellants purchased from Suba was also included in the same, that is why, in the latter revenue record this land was shown in the name of Provincial Government, although, it had nothing to do with the Provincial Government, therefore, entries in the revenue record showing the appellants as tenants under section 15 of the Colonization of Government Lands Act, 1912 with respect to the land which was not the subject- matter of the Provincial Government were certainly wrong entries. Although, there is a lapse on the part of the appellants not to have this ambiguity clarified even after having obtained order of correction dated 21-10-1974 but the reading of documentary evidence referred to above leaves no room of doubt that there were two sets of properties; one purchased by the appellants as a lot which was a Provincial Government land and the same was resumed on account of some default on the part of the appellants and the other was 16 Kanals land purchased by them from Suba, who was a confirmed allottee, therefore, in view of the law laid down in PLD 1973 SC 347 was fully applicable to the instant case. Appellants having purchased from a confirmed allottee were full owners to the extent of those 16 Kanals B which were incorrectly recorded in the revenue record in the name of the Provincial Government.
10. So far as the objection of the learned counsel for the vendees that the land in dispute is "Banjar Qadeem" and is not paying land revenue, suffice it to say that Column No,9 of Exh.P.1, clearly depicts that it is a land revenue paying C piece of land, although, it is recorded as Banjar Qadeem but the respondents/vendees have not led any evidence to show that this land has acquired urban character or has otherwise lost its agricultural nature. A Division Bench of this Court in Regular First No,94 of 1985 had held that in the absence of evidence to the contrary if a chunk of land falling in a village is not shown to be put to any other use, even in the absence of land revenue assessed to such land, cannot be said to be a land on the basis of which status of owner of estate cannot be claimed. This judgment was upheld by the Honourable Supreme Court in C.P. No,1414-L of 2005.
So far as Issue No,8 is concerned, suffice it to observe, even if the property during the pendency of a suit comes within the municipal limit but no evidence is led to show that it has acquired urban colour or has ceased to have its agricultural status, mere inclusion in the municipal limits would not deprive holder of such land from his status of being owner of estate.
12. For what has been stated above, both these appeals are allowed. Judgment and decree passed by the learned appellate Court dated 15-9-1981 is set aside. Suit filed by the appellants shall remain decreed in terms indicated by the learned trial Court. No order as to costs.