' This regular second appeal has arisen out of a pre-emption suit brought by the appellant, Muhammad Akram, in respect of certain agricultural land purchased by the respondent, Karam Elahi. The suit was resisted by the respondent, who was defendant therein, inter alia on the grounds that, it was in respect of urban immovable property inasmuch as the disputed property was within local limits of the town of Fateh Jang, District Attock, and was, therefore, not pre-eruptible, that at the time of the transfer of the land in his favour he cultivated it as a tenant and, therefore, the petitioner could not have it in preference to him, and that even if his qualification as a tenant was overlooked the appellant did not have a superior right of preemption because he (respondent) too possessed the same qualification, namely, ownership of the estate, which had been asserted by the appellant to claim the right of pre-emption. All these Pieas of the respondent found favour with the Civil Judge, who heard the suit, with the result that the suit was dismissed. Then the appellant went in appeal before an Additional District Judge but without success. Hence this second appeal.
2. As for the pre-emptibility of the disputed property, the concurrent finding of the lower Courts was that the said property was a part of Fateh Jang Town and since the appellant had not been able to show that the custom of pre-emption existed in the locality where the land was situate it could not be pre-empted by him. Assailing the above finding, it was contended by learned counsel for the appellant that since the property in dispute was agricultural land as defined in clause (I) of section 3 of the Punjab Pre-emption Act, 1913, it could be pre-empted by the appellant, under section 6 of the said Act, even if it was within the limits of the town of Fateh Jang. According to him, the property in question was not urban immovable property as defined in clause (3)4 section 3 of the said Act and, therefore, the provisions of section 7 thereof were not attracted to the present case. Clauses
(1) and (3) of section 3 are to the following effect: "(1) 'agricultural land' shall mean land as defined in the Punjab Alienation of Land Act, 1900 (as amended by Act I of 1907), but shall not include the right of a mortgagee, whether unsufructuary or not, in such land ;
(3) 'urban immovable property' shalt mean immovable property within the limits of a town, other than agricultural land. For the purposes of this Act a specified place shall be deemed to be a town
(a) if so declared by the Board of Revenue by notification in the official Gazette, or (b) if so found by the Courts."
These provisions read together clearly indicate that agricultural land lying within the limits of a town is not urban immovable property and, therefore, it can be pre-empted under section 6 of the'
Punjab Pre-emption Act. In other' words, a person claiming right of pre-emption in regard to such land will not have to prove custom as required by section 7 of the said Act. I, therefore, agree with the learned counsel for the appellant that if the V disputed property was agricultural land the appellant was not required to prove the custom of pre-emption even though the said land was lying within the local limits of the town of Fateh Jang. Ala v. Buta and others (1) is an authority in point.
3. It was also argued by learned counsel for the appellant that the respondent had claimed ownership of the estate on the basis of two sale deeds, Exhs. D. 5 and D. 6, but as these deeds were not registered, the respondent could not take the benefit of the sates recorded therein until the period of limitation for pre-empting the said sales had expired. The judgment of the learned Additional District Judge would show that it was not urged by the appellant before him that the aforesaid period of limitation had not expired by the time when the respondent had attempted to make use of the sales in question to defeat the suit brought against him. The only point canvassed by the appellant before the Court of first appeal was {{FOOT NOTE}}
(l) 26 P R 1912 {{FOOT NOTE}} ' that the sale deeds were not genuine and the appellant's objection in this behalf was overruled by the said learned Court with cogent reasons. I am, therefore, unable to agree with the learned counsel for the appellant that the respondent could not rely on the sales recorded in Exhs. D. 5 and a 6.
4. Since the learned counsel for the: appellant has not been able to convince me that the appellant had a superior right of pre-emption, the appeal fails and is dismissed in limine.