' In this civil revision petition under section 115, C. P. C. Raees Khan has challenged the judgment and decree, dated 1-10-1983 of Syed Yahya Zahid Gillani, Additional District Judge, Bannu at Lakki whereby accepting the appeal of the plaintiffs-respondents he decreed his suit for possession through pre-emption of the mortgagee rights sold by the vendees on payment of Rs, 3,820.53.
Earlier the suit of the plaintiffs-respondents was dismissed by the judgment and decree, dated 18- 11-1983 of Mr. Miftahuddin, Civil Judge, Lakki.
2. Mir Hamza plaintiff-respondent had brought a suit for possession through pre-emption of the mortgagee rights regarding land Khata No, 949, Khasra No, 48 measuring 30 Kanals 4 Marlas, transferred share coming to 24 Kanals 3 Marlas situate in village Ghuhar Khel, Tehsil Lakki, District Bannu. The suit of the plaintiff was hotly contested by the vendees defendants and pleadings of the parties obliged the trial Court to frame the following issues :-
(1) Whether the suit is within time ? 0. P. P.
(2) Whether the plaintiff has a cause of action ? 0. P. P.
(3) Whether the suit is bad being partial ? 0. P. D.
(4) Whether the plaintiff has got a superior right of pre-emption ? O. P. P.
(5) Whether the sum of Rs, 10,200 has been paid in good faith and fixed as sale consideration ? 0. P.
D.
(6) What is the market value ? 0. P. P.
(7) Relief.
' After recording the evidence of the parties as they wished to adduce the learned trial Judge on issues Nos. 2 and 4 came to the conclusion that the mortgagee rights in the suit land were not subject to pre-emption and that since at the time of alleged transfer the plaintiff had not become owner in;the suit land, therefore he had no superior right of pre-emption and accordingly dismissed the suit. On appeal however the learned Additional District Judge took a different view and came to the conclusion that the mortgagee rights sold by vendees-defendants were pre- emptible and accordingly accepting the appeal decreed the suit of the plaintiffs. Feeling dissatisfied with the said judgment and decree of the learned Additional District Judge. Raees Khan vendee-d, fendant has come to this Court through the instant civil revision petition for his redress.
3. I have heard the learned counsel for the parties and have gone through the record of the case.
4. The only question for determination in this case is whether the mortgagee rights are subject to pre-emption in the circumstances of the instant case. Under section 4 of the N.-W. F. P. Pre- emption Act right of pre-emption means the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons Agricultural land is defined in section 3 of the Act to mean land as defined in the Punjab Alienation of Land Act, 1900 as amended by Act I of 1907 but shall not include the right of mortgage whether usufructuary or not in such land. Similarly village immovable property has been defined to mean immovable property within the limits of a village other than agricultural land and urban immovable property is so defined to mean immovable property within the limits of a town other than agricultural land. The learned Additional District Judge while coming to the conclusion that the mortgagee rights were pre-emptible was persuaded by the observations in a case Shaukat Khan and others v. Khawja Muhammad Khan and another (1) wherein it was held that since sale of the mortgagee rights amounted to sale of immovable property hence under section 4 of the N.-W. F. P. Preemption Act such property was pre-emptible. There can be no dispute over the principle as elaborated in the authority referred to above but the question that falls for determination in the instant suit is whether the property in suit comes within the definition of immovable property because as referred to above village immovable property means immovable property within the limits of a village other than agricultural land and similarly, urban immovable property means immovable property within the limits of a town other than agricultural land. There can be no dispute that the land in suit is an agricultural land and such land under section 3 of the Act (ibid) shall not include the rights of mortgagee whether usufructuary or not in such land. Under section 4 of the said Act right of pre- emption arises in respect of agricultural and or village immovable property or urban immovable property only and not beyond that. Under section 4 agricultural land is subject to pre-emption but it does not include the preemption of right of mortgagees as defined in section 3 of the Act (ibid).
5. On this view of the matter I am of the firm opinion that the mortgagee rights in the agricultural land in suit are not pre-emptible and the learned trial Judge had rightly held so. The conclusion of the learned Additional District Judge is not tenable in view of the legal position. Accordingly I accept this civil revision petition set aside the judgment and decree of the learned Additional District Judge and restore that of the learned trial Court with the result that plaintiff's suit stands dismissed. Parties are left to bear their own costs.