1. ' MUHAMMAD HALEEM, C.J.--Leave to appeal was granted to consider whether land purchased as sikni before the sale of land pre-empted, which is recorded in the Jamabandi as Ghairmumkin Abadi in the column relating to the 'area and category' of the land and in respect of which land revenue of Rs,2.25 was payablec could be classified as agricultural land so as to confer an equal right of pre-emption on the vendee as being the owner of the estate so as to defeat his right to pre-empt the sale of the disputed land.
2. ' The facts are that Mst. Ghulam Sarwar and others sold land measuring 60 Kanals and 8 Marlas vide registered sale-deed dated 14th of June, 1979 to Abdul Ghafoor and others for a sale consideration of Rs,1,70,000. However, before this sale the appellants vide sale mutation No,52 which was attested on 28th of July,. 1970, purchased sikni land in the same estate which was recorded in the mutation as Ghair Mumkin Abadi but liable to land revenue according to the relevant Jamabandi. The respondents pre-empted the sale of the land sold by Mst. Ghulam Sarwar and others to the vendees in the Court of the Civil Judge, Multan, which was decreed on 10th of April, 1985 conditional on payment of Rs,1,95,000.
3. ' In appeal against the decree, the only issue which was contested was issue No,3 in regard to the respondents' superior right of pre-emption. It was contended before the High Court that the appellants also possessed the same qualifications as the respondents because of the purchase of land in the same estate vide Mutation No,52 which was attested on 28th of July, 1970 before the sale of the disputed land. The land purchased was agricultural land as it was under cultivation and assessed to land revenue. The High Court upon a review of the documentary evidence held that the land was purchased for sikni purposes and shown as Ghair Mumkin Abadi not only at the time of sale mutation but also in the subsequent Jamabandis. It was never under cultivation, and, therefore, it could not be classified or categorised as agricultural land. Accordingly, the High Court upheld the judgment and decree of the trial Court and dismissed the appeal in limine on 29th of April, 1985.
4. ' Before us reliance was placed on Muhammad Akhtar Chishti v. Ijaz Ahmed (1982 CLC 1700) in which the test laid down was as to whether the land was subject to land revenue and if it was so then it was agricultural land even though construction was raised thereon. In the mutation of sale (Ex.P-1) dated 28th of July, 1970, it is recorded that the land purchased is sikni and that under the column Muaamla there is a cross indicating that no land revenue is, payable. The other documents on record are copies of Register Girdawari for the year 1980-81 (Ex.D-4), Nagai Khasra Girdawari (Ex.D-5) which is undated and Nagal Register Haqdaran (Ex.D-6) recording the shares of inheritance of deceased Abdul Ghafoor and bearing the date 20-11-1983.
5. ' There is no denying the fact that in the sale mutation the land was purchased as a building site and it was, therefore, termed as sikni. The respondents in support of it filed Ex.D-3 which is a copy of the Khasra Girdawari relating to the year 1968. To 1971 in which it is recorded in the relevant column of Muaamla that no land revenue is payable in regard to the property sold. Previously, therefore, the land was not culturable nor was being used for agricultural purposes and it could not be subject to any land revenue assessment. Again in Ex.P-2 which is a copy of Khasra Girdawari, the same status of the land prevailed till Rabi 1975 and from Kharif 1975 to Rabi 1979 and further till Rabi 1984 no part of the land purchased was shown as cultivable. On the contrary it was mentioned as being used for residential purpose. The appellants relied on Exhibits D-4, D-5 and D-6 which are of subsequent years. In Ex.D-4 only a small portion has been shown as under cultivation of the appellants.. In Ex.D-5, some portion of Khasra No,28-5-1 which was purchased through Ex.D-3 has been shown under cultivation. Ex.D-6 which is a copy of Register Haqdaran and records the shares of inheritance of the heirs of the deceased is of the year 1981. In this document the land revenue shown is Rs,2.25.
6. ' As in the previous Jamabandis the land purchased was sikni and there was no formal assessment of land revenue, the trial Court held that the entry of land revenue was surreptitiously made to benefit the appellants. The High Court also accepted the assessment of the trial Court as to the status of the land being sikni (Ghair Mumkin Abadi) on the premise that the documents relied upon by the appellants even if they did contain an entry of land revenue, however, do not furnish the test of the land being agricultural because of such an entry.
7. ' In Mst. Sardar Begum v. Muhammad Ilyas (1983 CLC 1570), it was held that it was the status of the land at the time of the sale which was crucial. In Shah Muhammad v. Mt. Pairi (AIR 1936 Lah.202), it was held that the expression the "owner of the estate" used in section 15 of the Punjab Pre-emption Act, 1913, imported the meaning of ownership of agricultural land and -once the land is converted into a building site it ceases to be a part of the estate and its owner is deprived of all privileges which he could otherwise enjoy under the law. In Chint Ram v. Harbhagat Singh (AIR 1940 Lah.344), the facts closely resemble the status of the land before its purchase in the instant case, and it was held that the owner of the plot of land unassessed to revenue, hitherto uncultivated except to a trifling extent and clearly destined to be a building site, could not be regarded as an "owner of the estate" under section 15 of the Punjab Pre-emption Act, 1913. Rahim Bakhsh v. Wahid Bakhsh (PLD 1979 Lah. 544), follows Shah Muhammad's case wherein it was held that the change in the character of land from agricultural to building site by an owner disabled him to be an owner of the estate under section 15 of the Punjab Pre-emption Act, 1913. In Salehon Muhammad v. Shera and others (1977 SCMR 297), the cases of Shah Muhammad and Chint Ram were approved while holding that owners of houses in village abadi could not be regarded as owners of the estate. The facts in Mehrab Shah v. Shah Zaman (1985 SCMR 497) are altogether different as the dispute was that the appellant had in collusion with the revenue staff fraudulently got his name inserted in the revenue record as being in possession of the land in the suit without payment of Lagan and on that basis made a claim for adverse possession. Ft has no relevance to the point in issue in this case. In Shah Muhammad v. Khan Poor (PLD 1986 SC 91), the dispute related to a conflict of entry in the column of cultivation of Jamabandi with that over Lagan column and the question arose as to which should be given preference., It may here be mentioned that in this case the decision of this Court in Mehrab Shah's case was followed. This case has no relevance either. In Muhammad Akhtar Chishti v. Ijaz Ahmed and others (1982 CLC 1700 Lah.), the facts are distinguishable as the land before its purchase was under cultivation and assessed to land revenue, and it was subsequently in Kharif 1970 that it was recorded as Ghairmumkin Karkhana. It was accordingly held that as the assessm ent under section 64 of the Land Revenue Act continues for the fixed period of 25 years, the fact that the status of the land was changed would not make any difference as it was subject to land revenue. This finding in our view is against the concept of the expression "owner of estate" under section 15(c), Clause Thirdly of the Punjab Pre-emption Act, 1913, as laid down by this Court in Salehon Muhammad v. Shera and others (1977 SCMR 297) which decision was not noticed by the learned single Judge.
8. ' Accordingly, we would not approve the test laid down in this case of the "owner of estate" which means one who owns revenue B paying land and not the land which loses its culturable character and is converted into a building site.
9. ' For the foregoing reasons, the appeal fails and is dismissed with costs.