' This regular second appeal has sought to set aside the judgment and decree, dated 13-12-1968 pronounced by the learned District Judge R.Y.Khan who, after the acceptance of the appeal, had decreed the suit of Sohrab son of Allah Dad for possession by pre-emption of the land in dispute on payment of Rs.7,160.
' The relevant facts leading to the instant appeal in substance are that the land in dispute situate in village Rajanpur Kalan, Tehsil and District R.Y.Khan belonged to Muhammad Qasim, Muhammad Sadiq and Muhammad Ashraf. They entered into an Adhlapi agreement with Muhammad Shafi, the defendant-appellant. The cardinal terms of Adhlapi agreement were as under:-
(i) Muhammad Shafi was to sink a well within three years of the date of agreement.
(ii) He was to plant an orchard of mango trees in one Bigha of land.
(iii) Muhammad Shall paid Rs . 500 a part of Zar-i-lungi and was to pay a balance of Rs.1,500 as Zar-i-lungi at the time of the mutation of one-half of the entire land.
(iv) In case Muhammad Qasim and othes refused to get attested a mutation in favour of Muhammad Shafi, they were to pay Rs.2,000 by way of compensation to Muhammad Shafi.
3. After the accomplishment of the conditions of Adhlapi, Mutation No.532 was attested on 14-4- 1958.
4. Sohrab son of Allah Dad, who happens to be a co-sharer in the property in dispute, sought to pre-empt the sale of the land in dispute on the basis of his preferential right of pre-emption on payment of Rs.2,000.
5. Muhammad Shafi denied the superior right of pre-emption of Sohrab and inter alia contended that the suit was barred by limitation and had been instituted for partial pre-emption. He added that Daura Chah had not been included in the suit land and he had sunk a well and had constructed three rooms including the enclosing wall at the cost of Rs.5,000. He claimed improvements to the tune of Rs.15,000. He also assailed the valuation of the suit land as assessed by the pre-emptor. The learned trial Court formulated the following issues:-
(1) Whether the suit is within time prescribed by law ?
(2) Whether the suit is bad for partial pre-emption ?
(3) Whether proper court-fee has been paid ?
(4) Whether the suit has been filed for the benefit of defendants Nos. 2 to 4 ?
(5) Whether the plaintiff was present at the'time of the transaction and has also waived his pre- emptive rights ?
(6) Whether the defendant has spent Rs.15,000 on making improvements in the land ?
(7) What is the market value of the land ?
6. Mr.Muhammad Hassan Khan Sindhar, the then learned Senior Civil Judge found that the suit of Sohrab was hit by partial pre-emption and was barred by time. It was adjudicated by the learned trial Court that the proper court-fee had not been paid. The market price of the disputed land was assessed at Rs.1,011 per acre and the pre-emptor was consequently non-suited.
7. Khan Abaidullah Khan, the then learned District Judge, R.Y.Khan accepted the appeal and decreed the suit of Sohrab on payment of Rs.7,160.
8. At the very outset it has been argued by the learned counsel for the appellant that there was an Adhlapi agreement between the parties which did not tantamount to a sale and the transaction of Adhalpi was not pre-emptible. The very conditions of Adhlapi show that Zar-i-lungi of Rs.2,000 was promised to be paid and a part of Zar-i-lungi i.e. Rs.500 was paid on the date of agreement and the balance of Rs.1,500 was paid before the attestation of the mutation. The learned counsel for the appellant has persuaded me to interpret the word 'Lungi' as Salami or Pagri. Zar-i-lungi is neither Salami nor Pagri because the appellant had made the land of Muhammad Qasim and others arable and in case Salami was to be paid, it should have been paid to Muhammad Shafi and not to the dormant owners of the disputed land. Since a cash consideration of Rs.2,000 in addition to the services rendered by Muhammad Shafi was paid, so it tantamounted to sale.
9. Sale has been defined in section 54 of the Transfer of Property Act as transfer of ownership in exchange for a price paid or promised or part paid and part promised. Had there been a simple agreement of Adhlapi, then the position would have been different. In Gul Muhammad Khan v.
Khan Ahmad Shah 29 P.R. 1893, a transfer of la'nd in village was made in consideration for a sum of money plus something that was not money and it was held that the transaction was not an exchange but a sale. In An Bakhsh v. Soba Singh 23 P.R. 1906, it was adjudicated that assignment of immovable property in lieu of money plus part services and natural love and affection were a sale as contemplated under section 9 of the Punjab Pre-emption Act (I of 1913). In this manner the transaction in dispute is a sale within the meaning of section 9 of the aforesaid Act.
10. It has been contended that the suit of the pre-emptor was barred by time because Muhammad Shafi had obtained the possession of the disputed property under sale much before the entry of Mutation No.532. Muhammad Shafi had stated that he had paid a sum of Rs.1,500 before the mutation. Rehmat Ali D.W. had deposed that the mutation was to be entered as soon the conditions of the agreement were fulfilled. The copy of Mutation No.532 is indicative of the fact that on 16-3-1958 when this mutation was entered, the terms of Adhlapi had been completed. The learned District Judge was, however, of the view that the land was a part of the joint Khata and the physical possession of specific numbers was not obtained by Muhammad Shafi, so the date of the attestation of mutation was to be taken into account in determining the point of limitation. I do not subscribe to this view because under the terms of Adhlapi agreement, the possession of land was delivered to Muhammad Shafi who made it arable, sunk a well and also planted an orchard which was destroyed by hail-storm. He took possession of the land in dispute after payment of Rs.500 and when the price is partly paid, then the sale takes place. Furthermore, it may be noted that the terms of Adhlapi were completed in 1955 and the mutation was entered on 16-3-1958 which was subsequently attested on 14-4-1958. The pre emptor brought this suit on 21-3-1959.
11. The relevant portion of section 30 of the Punjab Pre-emption Act, 1913 reads as under: "In any case not provided for by Article 10 of the Second Schedule of the Limitation Act, 1908, the period of limitation in a suit to enforce a right of pre-emption under the provisions of this Act, shall, notwithstanding anything in Article 120 of the said Schedule, be one year--
(1) in the case of a sale of agricultural or of village immovable property, from the date of the attestation (if any) of the sale by a Revenue Officer having jurisdiction in the register of mutations maintained under the Punjab Land Revenue Act, 1887, or from the date on which the vendee takes under the sale physical possession of any part of such land or property, whichever date shall be the earlier."
12. It may be seen that section 30 of the aforementioned Act envisages that the limitation commences to run against a pre-emptor when the mutation is attested or from the date on which the vendee takes under the sale physical possession of any part of such land or property whichever date shall be the earlier. It means that Muhammad Shan had taken possession of a part of such land on the date of sale much earlier than the entry of the mutation by the Patwari. In this manner, the suit of the pre-emptor was clearly barred by time.
13. It has been represented that the suit of the pre-emptor was hit by the principle of partial pre- emption as he had failed to include Daura Chah in the land in dispute. It may be noted that Daura Chah should have been separately valued for the purpose of court-fee. Its market value should have been shown as its valuation for the purposes of court-fee and jurisdiction. The pre-emptor has assessed the valuation for both these purposes on the basis of the net profits which had arisen from the disputed land a year prior to the institution of the suit.
14. The learned District Judge has stated in the impugned judgment that a right to water enjoyed by the owner or occupier of the land is included in the definition of land, therefore, it can be said that Daura Chah being land had sought to be pre-empted. In section 3(1) of the Punjab Pre- emption Act, 1913, the definition of land as embodied in the Punjab Alienation of Lands Act, 1900 has been adopted with the simple variation that it shall not include the right of the mortgagee whether usufructuary or not, in such land. Alienation of Lands Act, 1900 defines land as under: "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) the sites of buildings or other structures on such land;
(b) a share in the profits of an estate or holding;
(c) any dues or any fixed percentage of the land revenue payable by an inferior land-owner to a superior land-owner;
(d) a right to receive rent;
(e) any right to water enjoyed by the owner or occupier of land as such; and
(f) any right of occupancy;
(g) all trees standing on such land.
15. From the above definition, it is apparrent that right to water enjoyed by the owner or occupier of land is land within the definition reproduced above. The appellant has proved that he had sunk a well in the disputed property. If the well had been sunk in the property in dispute, then the entire land had been included by the pre-emptor ib his suit. The suit is not hit by partial pre-emption in this manner.
16. As observed supra, Daura Chah and the constructions on the land in dispute do not fetch any net profits, so their valuation should have been assessed according to their market value. The learned trial Court has rightly observed that the plaint had deficiently been stamped.
17. In the light of the above observations, I accept this appeal and set aside the impugned judgment and decree pronounced by the learned District Judge, R.Y.Khan and restore that of the trial Court which bad dismissed the pre-emptor's suit. Due to the legal complexities involved in this appeal, the costs will not follow the event and the parties are left to bear their own costs.