KARAM ELAHEE CHAUHAN, J.-Faqir Muhammad (vendor) (defendant No. 1) sold the land in dispute measuring about 11 marlas situated in village Meura, Tehsil and District Peshawar, to Ziarat Gul (defendant No. 2) (vendee) (appellant) for a sum of Rs. 1,980. Ahmad Khan (plaintiff) (respondent) filed a suit for possession of the aforesaid land on the basis of pre-emption. The suit was decreed by the learned Civil Judge on 18-9-1969.
2. The first and second appeal filed by the vendee/appellant were dismissed by the learned Additional District Judge and the High Court on 14-12-1971 and 9-5-1972 respectively, on the grounds which will become clear from the discussion that follows hereafter.
3. The vendee/appellant has come up in appeal against the same to this Court by special leave which was granted on 22-12-1972, to consider whether the sale in dispute was exempted from pre- emption under section 5(e,) of the N.-W.F.P. Pre-emption Act XIV of 1950 (hereinafter called the Act) because the appellant allegedly had purchased the suit land (which measured less than 1 kanal) for construction of a house and that he did not already own any house or a vacant site exceeding 1 kanal in this village.
4. Learned counsel to open his arguments referred so section 5 of the Act which is headed as "Property exempted from pre-emption" and reads as follows :- "Section S.-Property exempted from pre-emption. No right of pre-emption shall exist in respect of the sale of, or the foreclosure of a right to redeem;
(a) a shop, serai, katra or club ;
(b) a dharamshala, mosque, church or other similar charitable institutions or buildings ;
(c) agricultural land or village immovable property, consisting of an area measuring not more, than two kanals purchased by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one kanal, for construct--ing a house for his own occupation."
5. It may be mentioned that all the Courts have recorded a finding that as the appellant owns a share in a house which has devolved upon him along with others by inheritance from his father, therefore under clause (c) of the above section, no exemption from pre-emption could be granted to him. Learned counsel has submitted that this finding of the Courts below is not in conformity with the provisions of section 5 reproduced above. The contention has merit and we are of the opinion that the finding aforesaid of the Courts below is not sustainable, because, it is on record that the appellant's share in the aforesaid house in only 1 kanal, and as held in Faqir Muhammad Khan v.
Mir Akbar Shah (1) at page 117 owning or holding of a share of that extent does not destroy the exemption in the above quoted A clause, inasmuch as, the words "measuring more than one kanal" cover both viz. The extent of ownership in a house or a vacant site as the case may be, whereas the extent of the share of the appellant was within the permitted safety range. Actually that was the view of a learned Single Judge of the Peshawar High Court on the construction of the words quoted above who had decided a revision application on that basis and this Court while taking note of the same in the above-cited case held that "But it seems to us that a great deal can be said in support of the view taken by the learned Single Judge in his judgment in the revisional matter which was sought to be reviewed."
A contrary view had been taken by a full Bench of the Peshawar High Court (1) PLD1973SC110 earlier in Majid Khan v. Mujahid Khan PLD 1966 Pesh. 264Referring to that case this Court at page 116 of the reported case observed that :- "The Full Bench has interpretted the words "where he neither owns a house nor a vacant site measuring more than one kanal" as meaning that - the ownership of a house of any dimension will be sufficient to disqualify a person from claiming this exemption. In other words, according to the Full Bench decision, the words "measuring more than one kanal" appearing in clause (c) of section 5- qualify only the words "vacant site and do not qualify the word "house".
At page 117, it was then held that :-- "We find ourselves unable to approve of the Full Bench decision which appears to be opposed to the ordinary grammatical construction of the language of clause (c) of section 5 of the North-West Frontier Province Pre-emption Act, 1950."
Learned counsel has not been able to urge anything warranting deviation from the aforesaid finding, view or observations of this Court. In that view of the law, the finding of the Courts below contrary thereto, on this aspect of the matter is erroneous and is hereby set aside.
6. This is, however, not the end of the matter, because, there is yet another feature and aspect of the case which is against the appellant, and that is that the appellant also owns a "vacant site" of an area of 1 kunal, 1 marla and 3 --sarsais which he had purchased on 4/5-9-1962 from one Mst.
Mehr Jana vide sale deed Exh. P. W. 2/1 in which he had stated that he was purchasing the same for constructing a house thereon. An attempt was made to show that despite the aforesaid recitals in the previous sale deed hereinbefore mentioned, the land stated therein remained an "agricultural land" as distinct from a "vacant site" and, therefore, its ownership (which was less than two kanals) was not enough so as to take away the exemption available to the appellant under clause (c) of section 5 of the Act The contention was repelled and it was held by all the Courts below that the phrase "va^ant site" was wide and comprehensive enough to include a piece of an agricultural land which a person may have purchased for raising a house, thereon, though later on, he in fact, may not have raised any such construction and had instead used the land, thereafter, for agricultural purposes.
7. Learned counsel has raised and repeated the same contention before us and has submitted that the Pre-emption Act in section 3 uses the words "agricultural land", "village immovable property" and "urban immovable property" etc. For regulating the exercise of a right of pre-emption about them. He submitted that to find out the exact nature and kind of any particular property, it is use to which it is being put on the date and at the time of the sale under pre-emption. If examined from that point of view, he submitted that in the instant case, the plaintiff/respondent had admitted in cross-examination at page 8 of the paper-book that :- "It is correct that the land purchased by defendant No. 2 from Mst. Mebr Jana is under cultivation although nearer to the land is a constructed house. The property purchased from Mst. Mehr Jana is surrounded by the agricultural land."
Projecting the argument, the learned counsel for the appellant contended, that if the land is used for building purposes either in a town or a village then it is not an agricultural land", and conversely, if it is used for agricultural purposes" it is not a "vacant site" because according to him "vacant" would mean "unused or not used for any purpose", and that each case, in this respect must be decided on its own facts. He argued that it is not a necessary implication that land is not agricultural land merely because at the time of sale it bears no crop. Agricultural land often lies fallow in the ordinary course of agriculture and often remains unsown by reason of, for example, paucity or excess of moisture and various other causes. Similarly he submitted, that if for example, where the suit land at the date of sale was agricultural land the fact that it had since been built upon by the vendee could not alter its character so as to effect the plaintiff's right of pre-emption.
1n the same tenor, he submitted that the land purchased by the appellant from Mst. Mehr Jana was an agricultural land, and even though he purchased it for raising a house thereon, but if for some reasons, did not construct any house, the nature of the land would remain agricultural `land' which is defined in the Act, with reference to the Punjab Alienation of Land Act III of 1900, which so far as relevant states that "the expression "land" means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture and includes a site of a budding or structures on such Land . . . . . . ." If the present case is adjudged in the light of above principles, the learned counsel submitted, then the old land purchased by him was an agricultural land at the time of the present sale and its ownership was no bar to give him the benefit of the exemption, contained in section 5
(c) of the Act. He emphasised that the aforesaid land was at the relevant time occupied for agricultural purposes, and therefore, was an agricultural land and not a vacant site. He further empbasised that this is more particularly so because that land still bore khasra and khewat numbers in the revenue records ; it was entered in the jamabandi ; it was still subjected to land revenue, and crops were being sown in it and from that point of view had all the potentials of an agricultural land.
8. We have given our anxious consideration to the pleas above--mentioned and are of the view that on principle the propositions put forward by the learned counsel seem to be quite attractive, but as pointed out by him and as he himself put it, each case has to be decided, with reference to its own particular facts and features though we may indicate that it is not mere] one isolated feature or characteristic which is the deciding factor but the cumulative effect of all types of incidents relevant on the subject which are to be taken note of before a final verdict is pronounced regarding the nature of any particular area or piece of land. We have no intention to lay down any exhaustive discourse on this subject and leave it for a comprehen--sive examination in some more appropriate case, because, according to us the present case turns on the true construction of the words "vacant site" on which we have recorded our finding in the ensuing para. Which is sufficient for the disposal of the present controversy.
9.I If we read clause (c) of section 5 it will be clear that it is sale of agricultural land or village immovable property measuring not more than 2 kanals which is exempted from pre-emption ifit is purchased by a vendee for construction of a house. This means that agricultural land, in this way, can be converted into a site for construction of a house. Same is the position of "village immovable property" (which is defined as immovable property other than agricultural land within the limits of a village")-which if purchased by a vendee for construction of a house and which is not more than 2 kanal in area is exempted from pre-emption. If after such a piece of land is on purchased by a vendee for that purpose but he does not raise a construction thereon, its character as a site-(of a would- be constructed house)-is no destroyed. Same would be the position, if for instance, he starts using the plot for agriculture during the period which may lapse between the date of his purchase and the actual construction or start of the construction.
10. Examined in this way it will be clear that the words "vacant site" do not mean a "site which at a particular time is unused for any purpose" but means-(so far as relevant in the present case)-a site which is meant for ,p building a house but on which no house has yet been constructed and from that point of view it is vacant site in that sense as distinguished from a site on which a house of the vendee already stands. This is clear from the sentence in clause (c) which says "where he neither owns a house nor a vacant site . . . . For constructing a house". The argument that if a particular site already in possession of a vendee-(at the time of another purchase by him)-is being used for agricultural purpose though it was purchased for raising a house therein, will not be a "vacant site" with due respect to the learned counsel, is not correct in the context above explained. Similarly the word "vacant" here will neither mean unclaimed or unoccupied by human beings, like bona vacantia nor nor "unused" and in the set-up of the Pre-emption Law under discussion will carry the meanings assigned to it by us above.
11. The result is that the case of the appellant fails on ibis ground resulting in the dismissal of this appeal which we hereby order leaving the parties to bear their own costs.