' Facts giving rise to the present appeal briefly are that land measuring 1 Kenai 10 Marla,:, 1/3rd share of land measuring 4 Kanals 15 Merles comprising Khasra No,2608, Khewat No,695 situated in Revenue estate Wazirabad, was old by one Muhammad ljaz All to Muhammad Sharif, Bashir Ahmad and Mahmoud Italie sons of Muhammad Shafi, vide Mutation No, 3024 attested on 2- 611958. The impugned sale was pre-empted by Muhammad Skirl and Muhammad Bashir by filing a civil suit. The sale was sought to be pre-empted on the solitary ground of being owners-of-the- estate where the suit land was situated. The suit was instituted on 20-4-1959. The suit of pre- emption was resisted by three vendees through their written statement wherein it was stated that the defendants had by virtue of certain sales made on 12-12-1957 purchased certain pieces of land.
Period for filing pre-emption suit against the said sales had run out. Therefore, on this ground the plaintiffs had No, super fir right against them. On 17-12-1959, following solitary issue was framed by the Trial Court:- ' Have the plaintiffs got a superior right of pre-emption? O.P.P
2. Parties 'produced evidence on this issue. Muhammad Shafi, one of the plaintiffs, appeared in support of his own case. It was deposed by him that the plaintiffs are owners of the estate wherein the suit land was situated, whereas the vendees were not owners During the cross-examination, it was admitted that vendees had also purchased land after the sale in .dispute in their favour. Fard Jamabandi P.1, copy of Mutation P.2, Jamabandi P.3 and copy of Khasra Girdawari P.4 were produced in support of the issue and the evidence was concluded. On the other hand, defendant examined Atta Ullah, Hakim Amir Ali, Muhammad Rally and Siraj Din apart from his own statement.
Exhs.D.1 to D.5 was produced in evidence.
3. Muhammad Shafi, one of the pre-emptors, has since expired and his legal representatives have already been brought on record. Similarly, Muhammad ljaz Ali, vendor, who was impleaded as defendant No, 4 in the plaint, has since been deleted vide order, dated 16-4-1968 passed by the trial Court.
4. The learned Civil Judge finding issue No,1 in favour of the plaintiffs, decreed the suit for possession by pre-emption for the land in-dispute on payment of Rs,,90 vide judgment and decree, dated 29-6-1961. Vendees Muhammad Sharif and others filed appeal against the judgment and decree, dated 29-6-1961 in the Court of learned District Judge, Gujranwala. Sardar Abdul Ghafoor Khan Lodhi, learned District Judge, vide his order, dated 4-3-1968, accepted the appeal and remanded the suit for trial with the following direction:- "1, therefore, accept the appeal and setting aside the judgment and decree, remand the case with the direction that the parties be given an opportunity to produce evidence on the point, whether the property purchased by the vendee-appellants from Siraj Din is agricultural land or has changed its previous character and has become residential property. The parties are directed to appear before the learned trial Judge on 9-3-1968."
5. I have heard learned counsel for the parties and have perused the entire record of the trial Court.
The plaintiffs claim for pre-emption was based on the ground of being owners in the estate. Exh.P.1 is a Jamabandi pertaining to the year 1955-56 and relates to the suit land. In column 11 of the said Jamabandi mention of the sale by Muhammad Ijaz Ali in favour of Muhammad Sharif and two others vide Mutation No,324 is made. Exh.P.2 is certified copy of mutation relating to the sale which is subject-matter of the present pre-emption suit. Exh.P.3 Jamabandi relating to the year 1955-56 shows Muhammad Shafi and Muhammad Bashir plaintiffs to be the owners of agricultural land in revenue estate of Wazirabad. P.4 is Khasra Girdawari relating to the land in dispute.
6. On the other hand, D.1 is a receipt showing payment of land revenue but is-not connected with the land in dispute. D.2 is a receipt whereby Qazi Ijaz Ali is said to have sold 1/3rd share of the land comprised in Khasra No,2608 in favour of Muhammad Sharif, Bashir Ahmad and Muhammad Rafiq,, on 10-1-1957. Admittedly, the said document is not relevant for the purposes of decision of the present appeal. Vide Exhs. D.3 to D.5, Siraj Din son of Hassan Muhammad is said to have sold half Marla each in favour of Muhammad Rafiq, Bashir Ahmad and Muhammad Sharif on 12-12-1957.
Mutation No,3040 regarding the said three sales has been attested on 23-8-1958. This Mutation has not been formally tendered in evidence and consequently has not been exhibited. The only point arising for decision in the present appeal is whether the vendees are also owners in the estate to compete successfully with the pre-emptors who are proved to be owners by virtue of Exh.P.3.
Evidence led on behalf of the defendants, Exhs.D.3 to D.5 does not show that the land purchased by them bore agricultural character and was assessed to land revenue at the time when the purchases were made. There is no evidence on file to show that purchases made through these three separate documents even if proved to be genuine, can clothe them with any right to resist the claim of the pre-emptor-plaintiff. To be an owner of the estate, one must own agricultural land which is subject to payment of land revenue. For who is owner of the estate, reference may be made to the case of Saleh Muhammad and another v. Shera and others 1977 SCMR 297. In the case in hand, as stated A above, the vendees have led no evidence to show that they are owners of agricultural land subject to payment of land revenue. In view of this state of evidence the learned District Judge was constrained to remand the case to the trial Court to decide the issue afresh after affording opportunity to both the parties to lead evidence as desire by them.
7. Though there was enough material before the learned District Judge to decide the appeal finally under Order XLI, rule 24 of the Code of Civil Procedure yet in order to avoid hardship, the appellate Court proceeded to make an order of remand under Order XLI, rule 23-A, C.P.C. to enable the parties to bring the necessary material before the Court enabling it to decide the controversy once for all. Order of remand in a way has gone in favour of the vendees but, strangely, the vendees did not feel satisfied with the order of remand and challenged it in appeal before the High Court. I enquired from the learned counsel for the appellants that if, as stated by him, the material is sufficient for decision of the appeal, after setting aside the order of remand the case can be referred back to the learned District Judge, Gujranwala for decision on merits, in the light of material already on record. Learned counsel when confronted with this query from the Court, came out with the suggestion that the order of remand made by the District Judge should be allowed to stand. Learned counsel for the respondents also agreed to the order of remand being maintained.
To avoid unnecessary remands which entail delays in disposal of the suits, 1 was of the view that the matter could have been decided by the learned District Judge in appeal particularly when there was enough material before him and the defect, if any in the evidence, could have been got remedied by resort to the provisions of Order XLI, rule 27, C.P.C. But then after hearing the learned counsel for the parties and the views expressed by them at bar, the order of remand is being maintained.
8. Suit for pre-emption filed in April, 1959 has not4bken decided so far. Keeping this long delay into consideration, the trial Court is directed to decide the suit within three months of the receipt of the record by giving preference to this case over otheRs,
9. As a result of the foregoing discussion, finding no merit in appeal, it is dismissed, leaving the parties to bear their own costs.