In this revision petition, the dispute between the parties pertains to the question as to whether the suit land measuring 2 kanals in all,agricultural in nature at the time of filing of the suit by the petitioner. This land was sold by Muhammad Ramzan son of Allah Ditta to the respondents Illahi Bakhsh and 5 others by means of a registered deed of sale on 11th of May, 1981, which sale was pre- empted by the petitioner by filing the suit. One of the objections raised in the written statement was that the land was not agricultural in nature and as such was not pre-emptible. The learned trial Court had framed 8 issues, out of which issue No.3 reads as under: - "Whether the suit property is not pre-emptible? OPD During the course of proceedings the learned trial Court had also appointed a Local Commissioner for carrying out inspection of the site, who submitted its report regarding the nature of the land as also the improvements made thereon. On this report, objections were filed by the petitioner which led to the framing of issue No.6-A in the following terms:- "Whether report of the Local Commissioner is liable to be set aside? OPD"
2. The learned trial Court in its judgment dated 10-2-1985 came to the conclusion that the report of the Local Commissioner, as regards the improvements, was correct but so far as it related to the character of the property, it was not in accord with the factual situation. He, therefore, rejected that part of the report. After having done so, the learned trial Court proceeded to decree the suit filed by the petitioner.
3. The respondents challenged this decree and judgment of the trial Court by filing an appeal before the learned District Judge, Leiah. The learned District Judge by means of his judgment and decree dated 19th of March, 1985 reversed the findings of the trial Court on issues No.3 and 6-A, after holding that the suit property had lost its agricultural character and was, therefore, not pre-- emptible. The learned District Judge also held that the report of the Local Commissioner was correct and could not have been set aside by the learned trial Court. The petitioner/ pre-emptor has come in revision against this judgment and decree of the learned District Judge, Leiah.
4.It was contended by the learned counsel for the petitioner that the suit land was situate outside the Municipal limits of Leiah town and that according to the Revenue record it was under cultivation at the time of filing of the suit, and therefore, the learned District Judge has erred in holding that the land was not agricultural and riot pre-emptible. The learned counsel for the respondents, on the other hand, has supported the judgment of the learned District Judge and also relied upon various judgments in support of his submissions.
5.I have considered the arguments of the learned counsel for the parties. The learned District Judge after considering the entire evidence on the record has come to the conclusion that the land sought to be pre-empted was not agricultural in nature. This finding of the learned District Judges, does not suffer from any misreading of evidence nor any error of procedure or of law has been pointed A out by the learned counsel for the petitioner. It is well-settled that the revisional jurisdiction under section 115 of the C.P.C. Can be exercised only when the subordinate Court either commits an error of jurisdiction or acts with material irregularity in exercise thereof.' In the present case, the learned counsel for the petitioner has not been able to point out any such defect in the judgment and decree which has been assailed in this revision petition. The learned trial Court had discarded a part of the report of the Local Commissioner without any valid justification, merely on account of deposition to the contrary made by some of the witnesses appearing before the Court.
The Local Commissioner, in the present case, was appointed under Order XXVI. Rule 9 of the Code of Civil Procedure. He visited the spot, recorded evidence, submitted his report and also appeared as D.W.5, to prove his report Exh. C-1, as also the site plan prepared by him Exh. C-2. It has been held by their Lordships of the Privy Council in Chandan Mull Indra Kumar and others v. Chiman Lal Girdhar Das Parekh and another AIR 1940 P C 3 that the report of the Local Commissioner is not to be lightly interfered with. B Consequently, merely because one of the witnesses had deposed regarding the factual position contrary to what had been reported by the Local Commissioner, his report could not be set asideThe learned District Judge after duly noticing the objections to the report came to the conclusion that it reflected the correct factual account of the location, nature and character of the property. He was, therefore, justified in setting aside the finding of the learned trial Court. This finding of the learned District Judge is not liable to be interfered with in revisional jurisdiction of this Court.
6. Even otherwise the argument of the learned counsel that the land was not agricultural and hence pre-emptible, is devoid of any force. In this connection it would of advantage to refer to the case of Mehr Din v. Dr. Bashir Ahmad Khan and 2 others 1985 SCMR 1 wherein it was held that if a plot of land was situate on a highway surrounded by different houses and was situate in an area where modern facilities could be procured, the land could not be held to above retained its agricultural character, even if it was once under cultivation. Similarly in Illahi Bakhsh and others v .
Allah Bakhsh and others 1981 SCMR 723 it was observed as under:- " . . . . The only point argued by the learned counsel was that the High Court has erred in holding that the land in dispute was not an "agricultural land" and that it was an "urban immovable property". We have gone through the record as contained in the paper-book and heard the learned counsel at length. It may be mentioned that the area involved was only ten marlas (in each case) and the High Court has after perusal of the relevant record, held that a part of it was shown therein as "Ghair Mumkin Abadi". It was surrounded by houses, "Pucka" metalled road and was located within the municipal limits of Multan City. The High Court referred to a large number of cases cited before it by the learned counsel for the parties for the purpose of the relevant factors which in such cases arc to be taken into the consideration, and after referring to the same in the light of the facts and the circumstances of the present case held that the property in dispute was "urban immovable property" and further that "the perusal of the sale deeds and area mentioned therein obviously goes to show that the alienations were for "small pieces of land for construction purposes". This view of the High Court appears to be well considered, which does not suffer from mistake of any legal principle in the matter of appreciation of evidence in cases of this type and is fully supported from the facts and features mentioned therein ....'
It will be noticed that, petition for special leave to appeal, in the aforesaid case was directed against the judgment of this Court in the case of Allah Bakhsh v. Haji Bakhsh and 3 others PLD 1975 Lah. 359, where after exhaustive review of the case law, while repelling the contention that the land was agricultural in nature because it was so described in the Revenue record and the head note of the sale-deed, it was held that the Khasra Girdawari described part of the land as 'Ghair Mumkin Abadi' and the perusal.Of the sale-deed and the area mentioned therein also showed that the alienations were of small pieces of land for construction purposes, the sale of such land was not pre-emptible. Applying the above principles to the facts of the present case, it is quite obvious that the case in hand stands on much better footing inasmuch as according to the sale-deed Exh. D.1, the land itself has been described as 'Sakni'. It relates to sale of only 2 Kanals of land which has been alienated in favour of six persons, which clearly shows that the land was being sold not for agricultural purposes, but for raising construction thereon, which fact also finds mention in the deed itself. From the description of the land given by the petitioner himself in the plaint, it is evident that the land is surrounded, on one side by a public street and on the other by house of Ali Murad .
In the Khasra Girdawari produced by the petitioner (Exh. P.2) most of the land is mentioned as 'Ghair Mumkin Abadi' or 'Banjar Qadeem'. There is sufficient evidence on, the record which has been duly noticed by the learned District Judge to show that the land is surrounded by 100/150 houses and is quite' close, if not adjacent to the T.D.A. Colony. There are also metalled roads, shops in the locality and the area is fully electrified. This being the position, no possible exception can be taken to the findings recorded by the learned District Judge. The learned trial Court while deciding this issue, did not take notice of the legal as well as factual position in its true perspective. The learned Civil Judge was influenced by the fact that the land, according to his finding, was situate outside the municipal limits. This fact, by itself is neither conclusive nor of any great importance while determining the nature or the: character of the land. Reference in this connection may be made toy Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159.
In view of what has been stated above, this revision petition has no force and is, therefore, dismissed with no order as to costs.