' This revision petition is directed against the judgment and decree, dated 3-7-1983 of the learned Additional District Judge, Gujranwala, whereby the appeal filed by the petitioner from the judgment and decree passed by the learned Civil Judge, Wazirabad, on 22-2-1983, dismissing his suit for possession by pre-emption, was dismissed.
2. A piece of land measuring 2 Kanals and 2 Marlas situate in Gakhar Town, Tehsil Wazirabad, District Gujranwala, was sold by Mst. Buddan Mai, its owner, to Ahmad Naseem and Ghulam Hussain respondents by a registered sale-deed, dated 5-3-1979 ostensibly for Rs.70,000. On 13-1- 1980, Asghar Ali petitioner, who was then a minor, instituted a suit through Allah Rakha his maternal-uncle, as next friend, to pre-empt the sale. He claimed the right of pre-emption on the ground that -he was the son of the vendor. He alleged that the land had been sold for Rs.42,000 but inflated sale price had been mentioned in the sale-deed to defeat his right of pre-emption.
3. The suit was resisted by the respondents. They maintained that the land had in fact been sold for Rs.70,000. They denied that the petitioner possessed a superior right of pre-emption as against them and contended that since the land was immovable property, its sale was not pre-emptible.
They also raised preliminary objections to the effect that the petitioner had no locus standi to file the suit, that the suit was Benami and that the suit had not been properly valued for purposes of court-fee and jurisdiction. The trial Court framed the following issues:--
(1) Whether the plaintiff has no locus standi to file this suit? O.P.D.
(2) Whether the suit land is not pre-emptible? O.P.D.
(3) Whether the suit is Benami, if so, with what effect? O.P.D.
(4) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction, if so, with what effect and what is the correct valuation? O.P.D.
(5) Whether the plaintiff has got a superior right to pre-empt the suit land as against the defendants? O.P.D.
(6) Whether an ostensible sale-price of Rs.70,000 was actually paid and fixed in good faith? O.P.D.
(7) If issue No. 6 is answered in the negative, what was the market value of the suit land at the time of impugned sale? OPP.
(8) Relief.
4. The parties adduced their evidence for and against the issues. After the parties had concluded their evidence, the learned counsel for the petitioner made a statement conceding that the land had been sold for Rs.70,000. The trial Court after appraising the evidence found issue No. 5 in favour of the petitioner but deciding issues Nos. 1 to 3 against him dismissed his suit. It was held that the land in dispute was situate within the limits of Gakhar Town and being surrounded by buildings had acquired the complexion of urban immovable property and that in view of the admission of Allah Rakha, next friend of the petitioner, in his statement as P.W.2 that he wanted the land for himself, the suit was clearly Benami. Before the decision of the suit, the petitioner filed an application in the trial Court praying that since he had attained majority he be allowed to personally prosecute the suit and his next friend removed. This application was allowed.
5. Feeling aggrieved by the dismissal of his suit, the petitioner preferred an appeal which was heard by the learned Additional District Judge, Gujranwala, who concurred in the findings arrived at by the t learned trial Court and dismissed the appeal. Hence, this revision petition.
6. I have perused the record and heard the learned counsel for the parties. The learned counsel for the petitioner in his arguments has assailed the findings on issues Nos. 1 to 3 only. The learned Courts below gave their concurrent findings on these issues against the petitioner after evaluating the entire evidence on record. On the conclusion of the parties, the learned Civil Judge had himself also visited the land in dispute and after considering its environments recorded a note to the effect that it had lost its rural character and was absorbed in the town. This material was undoubtedly sufficient to conclude that the land was urban immovable property and in the absence of any custom its sale was not pre-emptible. The learned counsel for the petitioner has urged that land under cultivation does not become urban immovable property merely, because of its situation in a town. He has cited Hafiz Hassan Muhammad and others v. Abdul Hameed and others PLD 1982 SC 159, wherein it has been observed that the contention that an agricultural land become excluded from the purview of the pre-emption Act merely on account of its inclusion in an urban area is not tenable. In this case, however, the finding of the learned Courts below that the land is urban immovable property is based not only on the fact that it is situate in a town but also on other ambient circumstances. These circumstances are that the area of the land is merely 2 Kanals and 2 Marlas and according to the sale deed Exh.D/1 it was sold to the respondents explicitly for the purpose of constructing a house, that it is situate on the road side and admittedly other buildings have been raised by other people all around nearby and that it is not under cultivation since its sale. For these reasons, the finding of the learned Courts below is unassailable in view of the principle enunciated in Allah Bakhsh v. Elahi Bakhsh and others PLD 1975 Lah. 355 as affirmed by the Supreme Court in Elahi Bakhsh and others v. Allah Bakhsh and others 1981 SCMR 723.
7. It has also been concurrently found by the learned Courts below that the suit was Benami. As mentioned above, the suit was instituted through Allah Rakha as the next friend of the petitioner who was admittedly minor at that time. This Allah Rakha in his statement as P.W.2 unambiguously admitted in cross-examination that he wanted the land for himself. Incidently, the petitioner was personally present in the Court room during the examination of Allah Rakha as P.W.2. His statement was recorded on 17-2-1983. On 21-2-1983, i.e. four days afterwards the petitioner filed an application under Order XXXII, rule 12, C.P.C. praying that since he had attained majority, the next friend be removed. This application was allowed forthwith. On the same date, his counsel made a statement in Court conceding that the land had been sold for Rs.70,000. However, no request was made on his behalf for recording his statement as his own witness. He could have availed of the opportunity to rebut the admission made by Allah Rakha, his erstwhile next friend, that he needed the land for himself. His failure to do so manifestly raises an inference that the admission of Allah Rakha in his cross-examination was not without substance. The learned counsel for the petitioner has argued that it was incumbent on the trial Court to have called upon the petitioner to enter the witness-box as his own witness after it had accepted his application filed under Order XXXII, rule 12, C.P.C. This argument is misconceived. There is no provision of law which imposed any such duty on the trial Court. In case the petitioner intended to examine himself as his own witness, he should have made a request to the trial Court to record his statement. In these circumstances, the finding of the learned Courts below on issue No. 3 as well does not suffer from any perversity.
8. In view of the above discussion, there is no force in this revision petition which is accordingly dismissed. The parties are, however, left to bear their own costs.