On the 17th September, 1973 by a registered sale-deed Nur Muhammad and Mst. Bhagan (hereinafter referred to as vendors) sold the suit land for a consideration of Rs.4,500 to Muhammad Sharif (hereinafter referred to as vendee) defendant-petitioner. On the 19th November, 1973, Assistant Commissioner II, Shorkot, District Jhang sanctioned mutation No. 4578 in respect of this transaction. On the 16th September, 1974 Abdul Majid plaintiff-respondent, hereinafter referred to as pre-emptor, filed a suit for possession claiming the right of pre-emption on the ground of being a co--sharer, khaivatdar and owner in the same khata.
2. In the written statement besides other preliminary objections, the defendant-petitioner took specific objections as follows :- The plaintiff-respondent filed an appeal before the District Judge, which has been accepted by the learned Additional District Judge, Jhang by his judgment dated the 3rd of January, 1978. Aggrieved by this judgment the petitioner filed a Civil Revision which was admitted to regular hearing on the 31 January, 1978.
3. The following three issues ultimately remained in field to be decided by this Court (4)-(i) Whether the land in dispute is vended by the vendee for the residential purposes, if so, with what effect ?
(5)--(ii) Whether the law of pre-emption is not applicable on the disputed land as it is situated in the town limits of Shorkot City?
(i.e) Whether the plaintiff's suit is mala fide?
And the substance of the impugned judgment is that the suit land on the date of alienation was agricultural land and subject to the law of pre--emption, and that the suit was filed bona fide,st consequently it reverses the finding of the learned trial Court to the effect that the suit land had changed its character to an urban land and no custom of pre-emption was proved to to have existed.
4. The learned counsel for the petitioner has referred me to the evidence and vehemently argued :- --
(a) that the pre-emptor was estopped by his conduct from claiming the right of pre-emption, even if there was any, as from the evidence on record it is established that he has waived the same ;
(b) that the learned Additional District Judge has not considered the evidence on record and the documents on the basis of which the en learned trial Court arrived at the finding that the suit land was an urban immovable property and not subject to the law of Pre-emption, and thereby committed an illegality ; and
(c) that there was documentary as well as other evidence on the record to show that the suit had been filed mala fide.
PLD 1964 Kar. 290), Gulzar Khan v. Mst. Shahzad Bibi and another (PLD 1979 SC 204).
5. In reply the learned counsel for the pre-emptor has submitted
(i) that the impugned order/judgment does not suffer from any illegality or jurisdictional defect so as to call for interference by this Court in the exercise of revisional jurisdiction ;
(ii) that the character of the land has to be looked up as it existed on the day of sale and not before or after the sale. and in support of this proposition he has referred me to the plaintiff's evidence as well as that of Faqir Muhammad vendor and D. W. 6 Ali Muhammad to indicate that at the time of sale the suit land was agricultural, and therefore, according to the learned counsel for the respondent it is of no consequence that houses bad been built in the vicinity.
Reference has been made to Salamat Rai v. Kanshi Ram (45 1 C 887) and Awa v. Buta and others ((1912) 30 P L R 77).
The First Appellate Court has overlooked these significant admissions from the pre-emptor's evidence itself, which bad rightly formed the basis for the finding of the learned trial Court. Similarly the learned trial Court overlooked that the pre-emptor's witnesses, by their own showing, were shown to be interested and connected witnesses, and therefore, it was not safe to accept their testimony to the effect that at the time of sale the suit land or some portion of the suit land was being cultivated as an agricultural piece of land and in this regard the learned lower Court did not take into consideration at all Bxb. P. 1 (a copy of the register haqdaran, for the year 1972-73), which clearly established that the land in dispute at the time of sale was banjar qadeem, neither assessed to any land revenue or lagan, not there being any source of irrigation, and this documentary evidence contradic--ted the verbal claim of the respondent-plaintiff's witnesses to the effect that at the time of sale the suit land was under the cultivation of Bashir Shahzada.
Similarly, the learned Additional District Judge has not at all taken into consideration the respondent-plaintiff's own document Exh. P. 2 (a registered sale-deed in respect of the land in dispute). Exh. P. 2 describes the land in dispute as urban land. The boundary as given in the sale- deed is; plots owned by different persons on three sides of the plot in dispute and on the 4th side a public land, and the purpose for the transaction as given in the sale-deed is All the D. Ws. Except D. W. 5 Deed-writer, proved the fact that the suit land was situate in New Abadi and the houses had been constructed around the plot in dispute, the street and street-lights had also been sanctioned by the Municipal Committee, and that the land in dispute was situate near the cinema and adda. And it will not be out of place- to mention that the pre-emptor did not challenge these averments in cross-examination and most important is the fact that D. W. 6 Wali Muhammad son of Khair Din in cross examination stated that he was told by the respondent- plaintiff' (pre-emptor) that And the witnesses of the vendee other than D. W. I and D. W. 5 (1'atwari and the Deed-writer) maintained that at the time of striking of bargain the pre-emptor was present and he played an active role in the transaction. I find that the pre-emptor did not challenge the above-quoted specific averments made by D. W. 6 and the law on the point is that when a fact is not challenged in the cross-examination, it is deemed to have been accepted, and in this regard I would refer to.
8. Similarly the learned Additional District Judge has overlooked that copy of the entry of the register of Wasiqa Navees (Exh. D. 1) proved that the land on the basis of which the pre-emptor based his claim stood already sold to Muhammad Khalid Rashid, and that the document Exh. D. 1 described the land so sold as residential and bounded by plots owned by different persons on three sides, and on the 4th side a public lane as well as a house. The learned Additional Distsict Judge has also not given due consideration to the evidence of D. W. 1 Muhammad Ramzan Patwari to the effect that: The fact of change in character of the suit land in relation to the law of Pre-emption was examined in Allah Bakhsh v. 11ahi Bakhsh, etc. And the case-law uptodate was summed up as follows :- "From the case-Wov cited at the bar it is abundantly clear that the Punjab Chief Court and subsequently the Lahore High Court upon the second decade of twentieth century continued with the consistent view that the agricultural property remains as such irrespective of the fact that it falls within the municipal limits or some construction is raised in the vicinity. But the trend from the third decade under--went a radical change. Sheikh Abdul Rehman's and another v. Khan Sahib Haji Rashid Ahmad and another AIR 1937 Lah.
182. A DIVISION BENCH ADOPTED THE VIEW THAT IF ON THE AGRICUL--TURAL LAND BUILDING SCHEME IS INTRODUCED AND THE MUNICIPAL AREA IS EXTENDED THEN ITS CHARACTER CEASES TO BE AGRICULTURAL. Reliance was also placed in this judgment on Hanse Nath and others v. Ragho Prasad Singh AIR 1932 P C 57 and Hayat Bakhsh v. Mansahdar Khan and others AIR 1935 Lah. 529. This view was adopted in hala Khazanchi Shah v. Haji Niaz Ali AIR 1940 Lab. 438 and Lal and others v. Muhammad Sharif PLD 1961 Lab.
47. '- As late as 1920 it was found by this Court in Shankar Das v. Mathra Das and another AIR 1920 Lah. 388 that the question whether a place is a town or a village for the purposes of the Pre-emption Act is one of law and therefore, a second appeal lies in respect thereof. This view has been followed in other cases as well as in Lal and others v. Muhammad Sharif PLD 1961 Lab. 47.
(I have used the capitals).
A direct case in support of the proposition in hand in Ram Lal v. Municipal Committee, Bhera (A I ,R 1947 Lah. 386), wherein it has been laid that even if a custom prevailed in the old town that custom could not be extended for the purposes of pre-emption outside the old abadi, which was constructed some time after 1900 on the land, which till then was an agricultural land.
9. The property having adopted the colour of urban immovable property the onus lay heavily on the pre-emptor to show that the custom of pre--emption existed in the area of suit land, which onus he did not discharge's and on this account too the finding of the learned trial Court was well - -merited and there was no basis for the learned Additional District Judge to reverse the same.
10. On Issue No. 5 it has also been overlooked by the learned Additional District Judge that the suit was instituted only a day before the limitation expired ; that the pre-emptor sold his own land to the vicinity in two transactions prior to the alienation being impugned ; that there was evidence that the pre-emptor knew the transaction fully well, and therefore, these circumstances by itself were sufficient to prove the mala fide of the pre emptor and that it is a settled principle of law that the equity of pre-emption is in favour of the vendee.
11. I am, therefore, of the view that the findings of the learned trial Court on Issues Nos. 4 and 5 were based on good evidence and the same has not been taken into due consideration by the learned Additional District Judge while reversing the finding of fact, and therefore, the impugned order merits to be set aside and in this regard I would refer to Prof. Munawar Hussain's case (1979 CLC 838). Even otherwise the learned trial Courts' view of the evidence should ordinarily be not overturned in the absence of very strong reasons as the learned trial Court has the added advantage of watching the conduct and demeanour of the witnesses and in this regard I will refer to Harmes and another v. Hinkson (AIR 1946 P C 156).
The result is that the revision is allowed, impugned order is set aside resulting in the consequential dismissal of suit with costs.