1. This civil revision filed by the vendees arises out of a suit for possession by pre-emption. Major Asghar Khan and some others sold land in dispute measuring 10 marlas, 10/262 share from Khasra No.740 situate at mauza Chaklala, District Rawalpindi, to Abdul Hameed, Abdul Rashid sons of Abdul Majeed, one-half, and one Mohammad Ashiq one-half, defendants in the suit by a deed of sale registered on 18-4-1978 at the sale price of Rs.14,150. Land in dispute was shown to have been purchased for sikni purposes. This sale led to a pre-emption suit by Chaudhry Mehrban Ali plaintiff on the grounds that he was a co-sharer in the land and was also an owner of agricultural land in Revenue Estate of Chaklala. Suit was instituted on 16-9-1979 in the Civil Court at Rawalpindi. In their joint written statement, defendants 1 to 3 resisted the pre-emption suit by denying the superior right of pre-emption and also pleading that plaint was deficiently stamped.
2. On 2-9-1977, Court which tried the suit settled following issues for determination: Whether the suit has been incorrectly valued for the purpose, of court-fee, if so, what is the correct valuation? O.P.D.
(2) Whether the plaintiff has superior right of pre-emption? OPP
(3) Whether the ostensible sale price of Rs.14,150 was fixed in good faith and actually paid? O.P.D.
(4) If issue No.3 is not proved then what is its market value? 0 . P . Parties.
(5) Relief On behalf of the plaintiff, certified copy of the impugned sale deed Ext. P-1, original sale-deed showing plaintiff's ownership of land in the village Ext. P2 were tendered in affirmative evidence and except for the statement of the plaintiff to be recorded both in affirmative as also in rebuttal, case was closed. Abdul Hameed a co--defendant appeared as D.W-1 and stated that plaintiff was neither a co-sharer nor owner of the land in the estate. On the basis of this evidence, trial Court decreed the suit to the plaintiff on 23-2-1981 upon payment of Rs.14,150 to be deposited by him in Court within one month from the date of the decree, failing which his suit was ordered to be dismissed. Defendants appealed. It was accepted on 17-2-1982 and the case was remanded to the trial Court to afford an opportunity to the plaintiff to produce evidence on issue No.2 to prove his superior right of pre-emption at the time of sale, at the time of filing of the suit and at the time of the decree. Defendants were also allowed an opportunity to rebut the additional evidence.
3. Consequently, in post-remand proceedings, plaintiff entered witness-box and made his own statement as P.W-1. In it, it was deposed by him that he was owner of the estate and in this behalf copy of register Haqdaran Zamin for the year 1976-77 was produced in evidence as Ext. P-3. Abdul Hameed as co-defendant also recorded his own statement and was supported by one Channan Shah D.W-2. D.W-1, in his testimony, had brought on record copy of register Haqdaran Zamin for the year 1976-77 Ext. D-1, copies of registered sale-deeds Exts. D-2, D-3. On review of the whole evidence, trial Court by its judgment dated 23-2-1983 held that plaintiff was owner of estate and decreed the pre-emption suit. Defendants went up in appeal. It did not succeed and was dismissed on 4-4-1988 by Additional District Judge-II Rawalpindi. Aggrieved by the decision, defendants have come up in revision to this Court. It was admitted on 19-5-1984 and has come up for hearing today in presence of the learned counsel for the parties.
4. From the above, it is evident that only the question falling for determination in the appeal is as to the preferential right of the pre-emptor. In the plaint, two grounds for pre-empting the sale were urged. First ground was that of co-ownership and the second was ownership of agricultural land in the Revenue estate. It is agreed that plaintiff was not a co-sharer. Therefore, the only material point is whether on the basis of evidence led in the case, plaintiff could be held an owner of the estate and given a pre-emption decree on this ground. As said above, evidence led in the case to substantiate the plea of ownership consisted of two kinds, one oral and the other documentary.
5. Oral evidence consisted of a solitary statement of the plaintiff recorded in post-remand proceedings. In this statement, plaintiff deposed that he was owner of the estate and sought to strengthen his statement by placing reliance on copy of Jamabandi Ext. P-3. In cross-examination, plaintiff was constrained to admit that he had sold land in bits from Khasra 738 to several persons for construction purposes. However, it was deposed that even after deducting the area sold, he was still left with some land in Khasra 738 which though not under actual cultivation was being put to growing of vegetables. No Revenue paper subsequent to 1976-77 was put on record to indicate that any part of Khasra 738 was in use for purposes of agriculture or purposes allied or subservient thereto, although such a document could be brought in evidence. It may be noted that the statement of Mehraban Ali P.W-1 was recorded in 1982. By that time, another Jamabandi must have been prepared. Exts. P-3 and D-1 are copies of Jamabandi for the land in suit pertaining to the year 1976-77. It shows that area of Khasra 1178/738 is 4 kanal, 17 marlas. It is recorded 'maqbooza malikan' and its kind as 'ghair mumkin makan'. In column 9 of the Jamabandi, it is shown assessed to land revenue. Kaifiat column of the Jamabandi records mutations of various sales made by Mehraban Ali plaintiff in favour of different persons for Sikni purposes. Apart from these mutations which find mention in kaifiat column of Jamabandi Exts.P-3 and D-1, defendants have also produced copies of registered sale-deeds Exts. D-2, D-3 showing that Mehrban Ali had sold 7 marlas of land to one Maqsood Hussain on 14-2-1970 and 5 marlas to Abdul Aauf and another on 8-8-1967, Exts. P-3, D-1 make no reference to .Sales made in Exts. D-2, D-3. Presumably, either the mutation of names had not taken place or that some omission in revenue papers exists in this behalf. Defendants' case is that plaintiff except for his constructed houses on Khasra 738 had sold out his entire ownership rights in this Khasra and that there is no land owned by the plaintiff which was in use for purposes of agriculture. Their further cask is that plea of growing vegetables on part of Khasra is a false statement. As to Ext. P-2, original sale-deed registered on 11-4-1957, plaintiff had purchased 6 kanals, 15 marlas comprised in Khasra 1592/473 under khata 466/707 at mauza Chaklala from Abdul Rahim and others. Copy of mutation indicating change of names in pursuance to Ext. P-2 or copies of other Revenue papers indicating change of ownership, kind of land conveyed in the sale-deed, its classification and whether it was assessed to land revenue have not been brought .On record. Reasons for non-production of these documents are not ascertainable from the present records, Mr. Younis Bhatti has also failed to give a satisfactory reply in this behalf. As said above, purchase of land was made in 1957. Impugned sale took place on 18- 4-1978. Plaintiff's oral statement was recorded in 1982. In these circumstances, if the land conveyed by Ext. P-2 was still in the ownership of the plaintiff and was in use for agricultural purposes assessed to land revenue, why was it thought unnecessary not to take the Court in confidence by placing these documents on record. Omission cannot be attributed to mere inaction, oversight or negligence. May be, it was an attempt at concealment of truth to take whatever advantage Ext. P-2 could confer. Be that as it may, in default of proper evidence showing that land in Ext. P-2 was still owned by the plaintiff and was agricultural land assessed to land revenue, this piece of evidence does not advance the case of the plaintiff any further. To me, Ext.P-2 is of no use to the plaintiff to invest him with the status of an owner of the estate. This takes me to the most important question as to whether plaintiff can be classed an owner of the estate on the basis of Ext. P-3. Khasra 1178/738 is in joint ownership of numerous persons including the plaintiff. As said above, it is Maqbooza malikan and its nature is recorded as 'ghair mumkin makan'. Plaintiff himself conceded that he had constructed his houses on this Khasra and had also sold land from this Khasra in parcels to various persons for sikni purposes. This fact is also supported from Ext. P-3 and copies of sale-deeds produced in evidence by the defendants. The plaintiff is an interested, party in the result of his case. His sold testimony as to the nature and kind of the land owned by him is not sufficient to hold that on, a part of khasra 738, vegetables were grown by him. Term 'agricultural land' has not been defined in Punjab Pre-emption Act 1913. But, it is stated in section 3 of the Act that it shall have the same meanings assigned to it in the Punjab Alienation of Land Act, 1900 (as amended by Act 1 of 1907) subject to certain modifications which are for the present purposes irrelevant. Similarly, term 'estate' has also not been defined in Punjab Pre-emption Act. But, it is provided in section 3 (6) that "any expression, which is defined by section 3 of the Punjab Land Revenue Act11887, shall, subject to the provisions of this Act, have the meaning assigned to it in the section". 'Estate' has been defined in Punjab Land Revenue Act 1967 in section 4 (9). Having regard to the definitions of 'agricultural land' and 'estate', owner of the estate connotes a person who owns agricultural land assessed to land revenue. Two necessary concomitants for a person to be an owner of the estate are, one that he must own agricultural land and the second that land owned by him must be assessed to land revenue.! It was observed in Boota Ram v. Bagga Singh and another AIR (35) 1948 Lahore 103 that "if an area does not fall within the definition of term "land" as defined by the Punjab Alienation of Land Act it would still remain a part of an "estate" as long as its owner had not, by converting it into a building site in a village or in a town, walked, so to say, out of the estate. In other words, I am of opinion that an area of land although lying fallow and useless in any estate and although not occupied for purposes either agricultural or subservient to agriculture or pasture does not cease to be a part of the estate within the meaning of the Punjab Pre-emption Act as long as it has not in fact ceased to be a part of the estate by being translated into other category permanently, that is, either by becoming village immovable property or urban immovable property". In this view, I am also supported by a decision of the Supreme Court in Salehon Mohammad and another versus Shera and others 1977 SCM R 297 and a decision of this Court in Rahim Bakhsh v. Wahid Bakhsh PLD 1979 Lahore 544. In the present case, Ext. P-3 only proves that plaintiff was merely owner of a built up property in khasra 738 and that no part of the aforesaid khasra was in use for purposes of agriculture or purposes allied or subservient thereto.
6. Therefore, the circumstance that built up property was shown assessed to land revenue in the Revenue papers was insufficient to invest the plaintiff with the status of an owner of estate to qualify for pre-empting sale of land in favour of defendants.
7. For the foregoing discussion, this revision is bound to succeed. Accordingly, it is allowed, impugned judgment and decrees passed by learned Courts below are set aside and the pre-emption suit filed by respondent Mehrban Ali is dismissed with no order as to costs.