1. MUHAMMAD AKRAM, J.-- This is a petition for review of the judgment, dated 8th of July, 1976 whereby the Civil Appeal No.80 of 1971 filed by the petitioner against the respondent was dismissed by a Bench of this Court.
2. The relevant facts necessary for the disposal of this petition in brief are as under. Respondent No.2, Mst. Nusrat Iqbal, sold the land measuring 3 Kanals 4 Marlas bearing Khasra No.266 situated on Chah Jagiwala in the estate of Kotli Behram, Tehsil and District Sialkot in favour of Dr. Bashir Ahmad Khan, respondent No-1, for Rs.13,000 by a registered sale-deed executed on the 28th of November, 1958. After--wards on the 27th of November, 1959 the petitioner brought a suit for possession of the land by pre-emption under section 6 read with section 15 of the Punjab Pre-emption Act, 1913 on the ground that the land in dispute was agricultural land and that he, as an owner in the estate, had a preferential right to acquire the same. The suit was resisted by the contesting respondent No.1 who in his written statement, inter alia, raised the objection that Kotli Behram where the land in suit was situated is not a village but formed part of a town with all the usual amenities available there and that the land in suit was urban immovable property to which the plaintiff had no right of pre-emption. But the trial Court on the 23rd of March, 1961, repelled these objections and decreed the suit of the plaintiff against the defendants. The contesting defendant-respondent No.1 went up in appeal against the decree. It appears that during the pendency of the appeal on the 14th of December, 1964, by virtue of a notification issued by the Governor of West Pakistan under section 7 of the Municipal Administration Ordinance, 1960, read with rule 4(4) of the West Pakistan (Declaration of Municipalities) Rules, 1960, the limits of the Municipality of Sialkot were extended and the area comprised in the estate of Kotli Behram was also included within the municipal limits.
3. In these circumstances on the 15th of June, 1963, the Additional District Judge, Sialkot, accepted the appeal of the respondent and remanded the suit to the trial Court, . Inter alia, for decision on. The following additional issues framed by him:-- (i)Whether the land in suit is urban immovable property ? O.P.-- Defendant-vendee.
4. (ii)If issue No.1 is proved in the affirmative whether there exists a custom of pre-emption in Kotli Behram within the meaning of section 7 of the Punjab Pre-emption Act (1 of 1913) ? O.P.P.
5. A second appeal of the petitioner against the remand order was dismissed by the High Court on the 6th of June, 1966.
6. After the remand on the 29th of September, 1966, the Senior Civil Judge, Sialkot dismissed the suit of the plaintiff and repelled his contention that the land in dispute was agricultural land. In this connection he observed that the entries in the Jamabandis (Exhs. P.6 to P.11) went to show that the land bearing Khasra No.266 measuring 3 Kanals 4 Marlas was Chahi under cultivation with different tenants upto 1955-56. In his opinion, therefore; at the most on this basis the land in dispute could be considered to be agricultural land till 1956 and not beyond it. He further observed that the defendant-vendee had purchased the parcel of land for the purpose of constructing a building on it. It was situated on Wazirabad road and was surrounded by various houses, factories and petrol pumps. He observed that the disputed plot of land was neither village immovable property nor agricultural land. It was situated in a thickly populated area which has got pucca residential houses, a big market, a Post Office, High School, metalled roads and electricity, and above all was also included in the limits of the Municipal Committee of Sialkot. It was, therefore, decidedly urban immovable property. In coming to this conclusion the trial Court also relied on the oral evidence of certain respectable persons produced by the defendant who had visited the site and the area in which the land in suit was situated and had deposed to these facts. In this connection the Court further observed that even the plaintiff was frank enough to admit that the plot in dispute was not being cultivated and was surrounded by different houses. He also admitted the existence of a Bazar in which there was shop of Dr. Jalal Din and such other shops from where all the articles of modern facilities could be procured. Considering this evidence the trial Court held that the land in suit was urban immovable property.
7. The plaintiff's appeal against the decree was dismissed by the Additional District Judge, Sialkot, on 8th of April, 1969. He agreed with the findings of the trial Court that the property in dispute was not agricultural land and had changed its character into an urban immovable property and was absolutely absorbed into an urban area surrounded by roads and buildings, with factories, petrol pumps and Post Offices set. Up in the locality. He also observed' that the land in dispute was included within the limits of Sialkot Municipality from December, 1962 and, therefore, the qualification held by the plaintiff to pre-empt the sale did not continue after the issuance of the aforesaid Notification.
8. This led to a regular second appeal filed by the petitioner against the judgment and decree. But on the 10th of June, 1969, a learned Judge of the erstwhile West Pakistan High Court at Lahore dismissed the appeal in limine, inter alia, on the to main grounds:- (i)that by virtue of notifications No.148 (Revenue), dated 3-3-1916, read with the aforesaid notification, dated 14th December, 1962, the right of pre-emption with respect to the land in suit, if any, had ceased to exist with the inclusion of this area within the extended limits of the Sialkot Municipality; and (ii)that the appellant had failed to show that the Additional District Judge had misread the record in holding that the area in dispute was not agricultural land.
9. In these circumstances the petitioner was allowed leave to appeal from the judgment of the High Court to examine the contention to the effect that the aforementioned subsequent notification issued in 1962 did not by itself defeat his right of pre-emption, firstly, because, it was not a notification under the provisions of section 8 of the Punjab Pre-emption Act, as amended from the to the, and, secondly, because, this notification could not take away a right which had already become vested in him.
10. But at the hearing of the appeal, this Court observed that it was needless to consider the contention as to whether the aforesaid notification issued under section 7 of the Municipal Ordinance, 1960 was applicable to this case or not and dismissed the appeal on the concurrent findings of fact recorded by the three Courts to the effect that the disputed land was urban immovable property and had ceased to be agricultural land since the year 1955-56 and was occupied as a building site. On these findings of fact, in the opinion of this Court, the disputed land was not pre-emptiable and the plaintiff was not entitled to the decree.
11. In these circumstances the petitioner has filed this petition for review of the judgment passed by this Court on 'the 8th of July, 1976 in dismissing the appeal of the petitioner against the respondents. Before us the learned counsel has argued that for the purpose of this suit the Courts were required to look to the nature and character of the land at the the of the sale made on the 28th of November, 1958 when the cause of action had accrued to the plaintiff and not to any subsequent changes made in respect thereof so as to defeat the plaintiff's right to pre-empt the sale of the agricultural land as such. In this connection he has relied, inter alia, on the pronouncement in Jiwa v. Buta and others 26 Punjab Record 1912 to the effect that land which at the the of the sale was occupied or let for agricultural purposes or subservient to agriculture and was not occupied as the site of any building in a town or village, is subject to pre-emption, no matter, whether it is situated in a town or in a village. In this connection in advancing his argument he has further drawn our attention to the additional issue framed by the Additional District Judge, Sialkot, on the 15th of June, 1963 while remanding the suit to the trial Court for a fresh decision. This is to the effect whether the land in suit "is" urban immovable property. He has, therefore, contended before us that in the presence of this issue, all the three Courts after the remand have misdirected the enquiry before them in their failure to record any specific finding as to whether the land in dispute was urban immovable property on the date of the sale. In his opinion any change subsequently brought about in the nature and character of the land was wholly irrelevant for the purposes of this suit brought by the plaintiff.
12. We have carefully considered this contention advanced before us. We find that unfortunately the additional issue in question was not happily worded and correctly framed by the Additional District Judge keeping in view before him the pleadings of the parties. The plaintiff had sued for possession of the land by pre-emption on the ground that it was agricultural land and the contesting defendant had denied the allegations and set up the plea in rebuttal that the land in suit was urban immovable property not pre-emptiable by the plaintiff: In this state of the pleadings the onus rested on the plaintiff to prove that land in suit was agricultural land on the date of the sale as alleged by him, and it was not at all necessary for the disposal of the suit to have framed an issue on the plea raised by the defendant in defence to the effect that the land in suit was village immovable property. He could have however, adduced his evidence in rebuttal to show that the property in suit was not agricultural land but urban immovable property on the date of the sale.
13. Nonetheless, we find that throughout the trial the parties were fully cognisant of this issue which really arose out of the pleadings of the parties and they had also adduced their evidence in respect thereof. So, that in our considered opinion no prejudice was done to any of the parties in the failure of the Court to frame a proper issue in the suit arising out of the pleadings of the parties.
14. In this connection after the remand before the trial Court the plaintiff himself strongly relied on the entries in the Jamabandis Exhs. P.6 to P.11 for the land in dispute measuring 3 Kanals 4 Marlas bearing Khasra No.266 to show that it was cultivated by different tenants upto 1955-56. On the 29th of September, 1966, the trial Court in dismissing the suit held that from this at the most the land in dispute could be considered as agricultural land till 1956 and not beyond it. The Court further observed that the defendant-vendee had purchased the parcel of land for the purpose of constructing a building. On it, and that the plot was situated on Wazirabad road surrounded by various houses. Factories and petrol pumps. It was even frankly admitted by the plaintiff that the plot in dispute "is not being cultivated and is surrounded by different houses", and he also admitted the existence of Bazar in which there was shop of Dr. Jalal Din and other shops from where all the articles of modern facilities could be procured. From this finding of fact the conclusion is irresistible that the property in dispute at the date of the sale was not proved to be agricultural land. It seems to us, therefore, that the suit of the plaintiff was rightly dismissed.
15. However, in this connection before us the learned counsel attempted to argue that having due regard to the entries in the Jamabandis (Exhs. P.6 to P.11) a presumption would arise that the land in suit had continued to be agricultural land for a period of at least four years onward from 1955-56.
16. But this contention advanced before us is wholly misconceived. In this connection it cannot be denied that periodical records (annual records) are prepared by the Patwari usually once in every four years in the form of Jamabandi incorporating therein the mutations occurring up to the 15th of June in accordance with the requirements of section 33 of the Punjab Land Revenue Act, 1887, corresponding to section 41 of the West Pakistan Land Revenue Act, 1967. But in this connection as laid down in para. 7.49 of the Land Record Manual the changes in soil classification need only be made in the next Jamabandi. However, during the harvest inspection the change in the soil should be noted in the register Girdawari in the harvest in which it occurs and repeated till preparation of the new Jamabandi. It would show that the entries in the Jamabandis (Exhs. P.6 to P.11) concerning the nature and character of the soil reflected the state of affairs prevailing at best up to 1956. The plaintiff failed to produce copies from register Girdawari for ensuing harvests to establish. That land in suit was under cultivation on the date of the sale. Neither under section 114 of the Evidence Act nor under any other provision of law brought to our notice, any presumption could be raised in favour of the plaintiff to the effect that the land in suit had continued, to retain its character as an agricultural land after 1955-56 on the', material date of the sale. This Court in dismissing the appeal of the petitioner rightly observed that according to the concurrent findings of fact the disputed land was urban immovable property and had ceased to be agricultural land since the year 1955- 56 and was occupied as building site. As such it was not pre-emptiable at the instance of the plaintiff. There is hardly any ground for review of this finding recorded by this Court in dismissing the appeal of the petitioner. We, therefore, see no force in this petition and reject the same.