An alienation of land measuring 3 kanals made by one Muhammad Shall in favour of the respondents, by means of a registered sale-deed dated 16-7-1970, called in question by the appellant through a pre--emption suit, on the ground that he was owner of the estate. The land is situate in village Suniarian, Tehsil Pasrur District Sialkot, and admittedly forms part of Khasra No. 259, which in all measures 6 kanals. A 3 kanals piece of land, out of this khasra number, bad earlier been purchased by the appellant. This sale was evidenced by sale-deed dated 22-12-1969. It is the remaining 3 kanals area which is subject matter of the dispute. Both the learned Courts below came to the conclusion that the land purchased by the appellant was built upon has lost its character as an agricultural land and the appellant could not claim himself as an owner of the estate, within the meaning of clause (c)-(thirdly) of section 15 of the Pre-emption Act. Accordingly, his suit as well as the appeal failed. The learned trial Court relied on Chins Ram v. Harbhagat Singh AIR 1940 Lab. 344 Lai and others v. Muhammad Sharif PLD 1961 Lab. 47 and whereas the learned first Appellate Court was influenced by Allah Bakhsh v. Ilahi Bakhsh and 3 others PLD 1975 Lab. 359
2. 1 have heard the learned counsel for the parties and examined the record. The admitted position appears to be that besides the aforesaid piece of land, the appellant does not own any other land to the village he purchased the same for constructing a factory, and has also raised some construction at the site. However, about 15 marlas area, surrounded by a boundary wall is under a garden but the entire area of 3 kanals is assessed to land revenue.
3. The learned counsel for the respondents has supported the reasoning which prevailed with the learned Courts below and in addition to the rulings cited in their judgments he further relied on Shah Muhammad v. Mst. Pairi and others AIR 1936 Lab. 202. It was not disputed by him, that the up-keep of the garden is agricultural but .He adopted the view taken by the learned Additional District Judge that the garden was the part of the building and not vice versa.
4. According to the revenue record the position appears to be that before the sale in favour of the appellant, the entire Khasra No. 259 was under cultivation.. The sale in favour of the appellant took place on 22-12-1969 and as per entries in the copy of the Khasra Girdawari Exh. D. 2, in Kharif 1970 the land was under "Ghair Mumkin Karkhana". In the next `Girdawari' for Rabi 1971, there is a garden in 15 marlas and "Ghair Mumkin Karkhana" in rest of the area.
5. It is to be seen that as per register for the year 1967-6g (Exh. PW/4), the land is 'chahi' and assessed to land revenue. One of the arguments, advanced by the appellant before the learned trial Court was, that as the land was subjected to land revenue, notwithstanding its user for residential purposes, it continued to remain as agricultural land. This argument was discarded by the learned trial Court on the ground that there was no evidence that the land remained assessed to land revenue, even after it was built upon by the appellant. This view is palpably wrong. The assessm ent of a particular assessm ent circle, under, section 64 of the Land Revenue Act, is made for a fixed period of 25 years and such assessment, as envisaged by section 65 of the Act, even after the expiration of this period, remains in force, until a new assessment takes place. Since there is nothing on the record, as to the post sale non-assessment of the land revenue, the presumption would be that it remained under assessment. As alluded to above, it was argued on behalf of the appellant that the main criterion for determining the status of the land, is, as to whether or not it is assessed to land revenue. According to the appellant's learned counsel, as long as a piece of land though small in size, is assessed to land revenue, even if it is built upon, it does not cease to be agricultural land. Indeed the case law cited by him demonstrates preponderance of the view, in favour of this proposi--tion. In Salamat Rai v. Kanshi Ram and others (1) AIR 1918 Lab. 334, it has been held that a person buying a small piece of land, for building a house, if assessed to land revenue, does not cease to be owner of the estate, merely because he has walled of his land and stored iron there. The other case cited by the learned counsel is Chanan Din v. Karam Bakhsh1933 P L R 227 (2). This precedent relates to a plot of 4 marlas located in Abadi and purchased for building purposes, But since it was assessed to land revenue, on the authority of Salamat Rai v. Kanshi Ram and others, and some other case law, the owner of the land was held to be an owner of the estate.
In Fakir Muhammad v. Kala Khan AIR 1933 Pesh. 33, a D. B. Of the Judical Commissioner's Court maintained ....The phrase "owner of the estate" has obviously been taken from the revenue point of view, and there is a close association between an owner and the liability to pay revecue. If a person owns property which is assessed to land revenue and for which as an owner he is responsible to pay the amount assessed we see no difficulty in holding him an owner of the estate."
6. 1 lave also examined the case law cited by the learned counsel for the respondent and I feel that it is distinguishable and has no direct bearing on the point in issue. In Shah Muhammad v. Mst. Pairi and others AIR 1936 Lab. 202 the plot once agricultural land, was situate within the municipal limits and was afterwards built upon. Upon these facts, it was maintained that as soon as agricultural land is converted into a building site whether in a village or a town, its owner -eases to be member of the proprietary body and cannot pre-empt the sale of land as an owner of the estate. This ruling does not indicate that the plot was assessed to land revenue. In Chint Ram v. Harbhagat Singh the land was not assessed to land revenue. The question in Lal v. Muhammad Sharif was as to whether the land in respect whereof, the pre-emption suit was filed, was village immovable or urban immovable property. Similarly, in Allah Bakhsh v. Ilahi Bakhsh. The land as per 'khasra Girdawari' was described as "Ghair Mumkin Abadi" and held urban immovable property. It is thus obvious that the controversy adjudicated upon in these precedents is different from the one calling for decision in the instant case, The learned Courts below fell in error in holding that the land lost its character as an Agricultural land.
7. The trend of the case law appears to be that for the purposes of Pre-emption Act, XX a plot assessed to land revenue, even if construction is raised over it, cannot be striped of its status as an agricultural land. Further more, at least a piece of land measuring 15 marlas is under garden.
Though the learned trial Court dubbed the entry in this respect, in the Khasra Girdawari for Rabi 1971, as collusive but the tenor of th Appellate Court's judgment shows that the learned Additional District Judge did not subscribe to these remarks. It is noteworthy that except for Kharif 1979 at least a piece .Of land, both before 'and after the sale remained under cultivation. As observed above, user of the land for the purposes of a garden is an agricultural purpose. It is to be appreciated that the garden. Finds mention in the 'Girdwat' and the land underneath it is assessed to land revenue.
In the presence of these two fundamental elements, the fact that the garden is attached to the building or has been walled of, is not of much significance.
8. For the foregoing reasons, I am unable to maintain the judgment and decree under appeal and it is held that the appellant was owner of the estate. The findings on issue No. 1 are thus reversed.
Consequently, the appellant's contended that he has a superior right of pre-emption, is accepted, In his statement dated 23-5-1974 the appellant had already agreed to sale price of Rs. 10,000 as claimed by the vendee respondent. There is thus no dispute regarding the sale price of the suit land. The findings on other issues having not been assailed are not, disturbed.
9. As a result of this discussion, this second appeal is allowed and the impugned judgment and decree are set aside. The appellant's suit is decreed in his favour and the sale price fixed at Rs.
10,000. He shall deposit this amount, ;n the trial Court of or before I-7-1982, after deducting "Zare Punjam" already paid, failing which his suit shall stand dismissed with costs. 1n case of deposit of the sale price, within this time limit, there shall be no order as to costs.