1. Material points requiring decision in the second appeal by the vendees-- defendants in the suit for pre-emption are, whether Lawa is a village as held by learned Additional District Judge in first appeal or was a town as found by the learned trial Court and further whether sale of the land in suit is pre-emptible.
2. One Ahmad Khan was owner of 1,485 Kanals, 4 Marlas land situate in the revenue estate of Lawa, Tehsii Talagang. Of it, 2 Kanals 1/18th share from Khewat No.561 was sold by him to Abdullah, Saadullah and Mian Amanat sons of Muhammad Roshan for Rs.8,000 vide deed of sale registered on 10-9-1978. Vendees had purchased this piece of land for constructing a house. Sher Khan plaintiff as collateral of the vendor and owner of the revenue estate claimed pre--emption in respect of the above sale and sued to recover possession of the land. He offered Rs.4,000 as sale price to, the vendees and asserted that the rest was fictitiously mentioned in the sale-deed merely to stave off his pre-emption. In defence, vendees submitted that Lawa was a town and the land in suit having acquired urban character was not pre-emptible; that pre-emption suit was barred by limitation; that plaintiff consented to the sale and was estopped to sue; that the plaintiff was in the habit of filing pre-emption suits for mere personal enrichment and suit was mala fide; that defendants made improvements upon the land worth Rs.5,500. In replication, plaintiff reiterated his earlier stand and further submitted that neither Lawa was a town nor the land in suit was urban immovable property.
3. On 4-12-1979, the trial Court settled following issues for determination:- (1)Whether the plaintiff has superior pre-emptible right to that of the defendant-vendee? OPP.
4. (2)Whether a sum of Rs.8,000 as the sale price of the suit land was fixed in good faith or actually paid? OPD.
5. (3)If issue No-.2 is not proved, what is the market value of the suit land? OPD. Parties.
6. (4)Whether the suit land is not pre-emptible? OPD.
7. (5)Whether the suit is time-barred? OPD.
8. (6)Whether the plaintiff is estopped by his words and conduct to bring this suit? OPD.
9. (70 Whether the defendant has effected improvements upon the suit land, if so, to what extent and of what value? OPD.
10. (8)Whether the suit is mala fide and the defendant is entitled to special costs? If so, to what extent, OPD.
11. (9)Relief.
12. Upon review of the evidence led in the suit, the trial Court dismissed pre-emption suit on 10-6-1981.
13. It was held that since Lawa was town and the land in suit had lost its pastoral character and was urban immovable property, its sale in absence of custom was not pre-emptible; that stated consideration in the sale--deed was fixed in good faith and actually paid to the vendor and in this view, separate finding about market value of the land was unnecessary; that defendants had not proved improvements; that the pre-emption suit was not barred by limitation; that estoppel was not established. It is seen from the judgment of the trial Court that it gave no express finding on superior right of pre-emption as in result of its finding upon issue No.4, it had become redundant.
14. On plaintiffs appeal, Additional District Judge reserved the decision of the trial Court and gave decree for the land in suit to the plaintiff subject to deposit of purchased money (unspecified) till 17-2-1982, failing which the pre-emption suit was to stand dismissed. In regard to issue No.4, Court below was of the opinion that Lawa was a village but it gave no findings on other issues by observing that "remaining issues have been decided in favour of the appellant". Against this decision, vendees have filed an appeal contending that upon factors enumerated in the impugned judgments, Lawa could not be treated a town for purposes of law of pre-emption. In memorandum of second appeal, it was also averred that other issues which were necessary for the decision of the case were not attended to by the Courts below and in this view, its judgment was bad and defective.
15. Seen from the above, first appeal proceeded to decision on the sole point that Lawa was a village and not a town and it is this point that Court is called upon to decide in the second appeal.
16. Legislature neither defined term "Town" or "village" in the Punjab Pre-1 emption Act 1913 nor laid down criterion for determining a place to be a town or a village. Law of pre-emption in Punjab deals with three kinds of immovable I property viz. Agricultural land, village immovable property and urban immovable 1 property. These terms have been defined in section 3 of Punjab Pre- emption Act. As for the last kind of property, it means immovable property within the limits of a town other than agricultural land. Village immovable property means immovable property situate within the limits of a village other than agricultural land. Definition of agricultural land with certain exclusions has been taken from its definition in the Punjab Alienation of Land Act 1900. Subsection
(3) of section 3, provides that for purposes of the Pre-emption Act, a specified place shall be deemed to be a town--(a) if so declared by the Board of Revenue by notification in the Official Gazette, or (b) if so found by the Courts. Therefore, in order to determine whether a particular place can be classed as a town, first thing to see is whether it is so notified by the Board of Revenue in the Official Gazette and if not, whether it has been held or could be held to be a town by the Courts. It is common ground that there is no notification by the Board of Revenue declaring Lawa a town for purposes of Pre-emption Act. Also, no notification under any other Act has been issued for Lawa to be a town. In Diwan Chand v. Nizam Din and others AIR 1924 Lah. 662 (1), the expression "village" was found to connote, ordinarily an area occupied by a body of persons mainly dependant upon agricultural or occupations subservient thereto. Important criterion to determine a place to be a village or town, therefore, must be the principal avocation of large body of persons who inhabit it. If they are bound together by a common interest in agriculture and the place also possesses other distinctive village features like existence of a large area of agricultural land, ordinary village abadi, ordinary officers IInd Record of Rights, mere extension of modern facilities to the place like electricity, building of approaches/roads, establishment of educational institutions, dispensary/hospital, a post office, a financial institution in the nature of a bank and a Bazar to cater for the day to day needs/requirements of the inhabitants of the place shall not be sufficient to shed its basic pastoral character. To be invested with the legal status of a town. Conversely, if the place is occupied by persons who are mainly engaged in commercial pursuits and agriculture is their subsidiary avocation, the place can well be classed as a town. Judged in the light of the above criteria, Lawa has all the characteristics of a village. It has large area of agricultural land and is a big revenue estate in Attock district. It haE Revenue records and village Patwaris to look after them. It was not denied that there are also Lambardars in the revenue estate Lawa. Ext.P.5 a copy of judgment of District Judge Attock passed on 2-4-1979 held Lawa a "village" and not a town. Not a single instance holding otherwise was brought on record by the defence. Therefore, upon the existing records, it is difficult to hold with learned counsel for the appellants that Lawa was a town and the property within its precincts was not pre-emptible. After having found that Lawa was a village, it is not difficult to hold that sale' of the land in dispute was pre-emptible. As said above, 2 Kanals, 1/18th share of Khewat No.561/2095/2109 was sold to the vendees. An extract from Record of Rights indicating total area of Khewat 561 has not been filed. Similarly, Jamabandi pertaining to suit land was not brought on record. However, some assistance in this behalf is available from Ext.P.2.
17. Cope of an extract from Register Khasra Girdawari for crops Kharif 1975 to Rabi 1980 It was admitted that Khasra No.1449 was comprised in Khewat No.561. 1f this be so, it is clear that the land in suit was agricultural land situate in a village and its sale was clearly pre-emptible. Even if the land could be treated as village immovable property, result shall not be much different because even than its sale t was pre-emptible upon the qualifications enumerated in section i5 e)f the Pre- -emption Act. In this view, finding recorded on issue No.4 by the learned Judge below is correct and cannot be disturbed. As observed above appellate Court gave no findings on issues 1, 5 to 7 on the ground that these have been decided i:, favour of the appellant by the trial Court. It is an incorrect statement. It is not denied that the trial Court gave no finding on issue No.l which wits left unattended to as having been held redundant. Issue No.2 was found in favour of the vendees. No finding was recorded on market value of the land. As for issue of limitation, it was found in favour of the plaintiff and issue No.5 was decided against the defendants. Likewise, issues No.6 and 7 were found against the defendants. Therefore, it is manifest that the trial Court gave no finding on superior right of pre-emption claimed by the plaintiffs. Learned Court below was obliged to record specific decision on issue No.l before decreeing the suit in favour of the plaintiffs. Similarly, whatever be the worth of evidence produced to prove improvements, appellate Court was also bound to advert to it and record its findings on merits. Additionally, impugned judgment and decree are defective because the Court failed to specify the amount of purchase money which the decree-holder was to deposit in Court for being successfully substituted for the vendees in the sale.
18. In view of the aforesaid, second appeal is allowed. Impugned judgment and decree of the learned Judge below passed on 17-1-1982 are set aside and the case is remanded to learned District Judge Attock to record fresh findings on issues Nos. 1, 5 to 7 and decide the appeal afresh on merits in accordance with law. Decision on remaining issues shall not be disturbed and shall be kept intract.
19. Costs of the appeal to be borne as incurred.
20. Records be returned.