This appeal arises out of a suit for possession through pre-emption of 41 Kanals 8 Marlas of land situate in village Kotli Khanoo Tehsil Daska District Sialkot. It was sold by its owner Mst. Saeeda Begum to Taj Din appellant h means of a sale-deed dated 9th of June 1964.
2. The suit out of which the present appeal arises was instituted by Muhammad Hussain and others on the ground that they were owners in the estate. It was resisted on the ground that the vendee- appellant had improved his status before the suit by acquiring 22 Marlas of land in the same estate under a gift on 25th of May, 1965. The plaintiff-respondent urged in rebuttal that the lane so acquired by the appellant was not agricultural in nature and there fore, did not invest him with the status of an owner of the estates within the meaning of section 15 of the Punjab Pre-emption Act, 1913.
3. This contention prevailed before the trial Court and the suit for pre---emption filed by the respondents was decreed on 23rd of December 1972. It was held by the trial Court that the land on the basis of which the appellant too claimed to be an owner of the estate, was not agricultural in nature but had been gifted to him for building purposes over which building material had also been collected by the appellant. He, therefore, had no right no right of pre-emption and could not successfully resist the claim of the respondents-plaintiffs. The appeal filed by the appellant was dismissed by Additional District Judge, Sialkot on 15th of July 1975. He has now preferred this regular second appeal.
4. The only question which falls for determination in this appeal is whether the appellant on account of the acquisition of land through gift in his favour had become owner of the estate within the meaning of section 15 of the Punjab Pre---emption Act, 1913. The contention advanced on behalf of the appellant was that as the suit land was assessed to land revenue and had not been built upon, it continued to retain its agricultural character and its ownership vested the appellant with the status of an owner of the estate. The learned counsel for the respondents on the other hand contended that since the Land had been gifted for building purposes, over which building material had also been collected, it cannot be considered to be agricultural land especially when it was being used neither for agricultural purposes nor for a purpose subservient to agriculture.
5. From a perusal of the mutation of gift dated 25th of May 1964 Ex. D1 it is evident that the land in question was Chahi in nature and gas assessed to land revenue. Though the purpose for which the land was gifted was mentioned as construction for a house, but at the time of gift or even subsequently no construction had been raised on the land. The only evidence on the record in this behalf is that the appellant had collected building material but could not raise the construction on account of the suit filed by the appellant. It is also noteworthy that the gift was made on 25th of May 1965 while the suit was filed only 7 days thereafter i.e. 2nd of June 1965. The fact that the land on 25th of May, 1965 was agricultural in nature stands established by Ex.P4, the mutation of gift.
There is no evidence on the record to show that during this period of 7 days, the nature of the land was changed permanently so as to divest it of its agricultural character. Admittedly no construction was raised during this period or even subsequently thereafter.
1982 CLC 1700) this Court after review of the entire case-law held that if the land continued to be assessed to land revenue, it cannot be stripped of its status as an agricultural land. The law appears to be well-settled that so long as the agricultural land is not permanently translated or converted either into village immovable or urban immovable property as the case may be by raising construction over it remains agricultural land. Reference in this connection may be made to Boota Ram v. Bagga Singh and another (AIR 1948 Lah. 103) and Muhammad Hussain v. Muhammad Din etc. (PLJ 1975 Lah. 234). In the two precedent cases it was held that it is only where the land had permanently constructed upon and had become immovable property, either village or urban, that it can be considered to have ceased to be agricultural land, its owner said to have walked out of the estate. In the present case as already indicated, the land of the appellant had not been constructed upon and as such the appellant cannot be said to have walked out the estate. There is no conversion of land either to urban immovable property or to village immovable property, especially when the land continued to be assessed to land revenue. The Courts below appear to have misdirected themselves by holding that the land had ceased to be agricultural in nature merely, because the purpose for which gift was made was to construct a house and the building material had also been collected by the appellant. These two considerations were not relevant in the context of the present case.
The learned counsel for respondents has relied upon Shah Muhammad v. Mst. Pairi and others (AIR 1936 Lah. 202) in support of his contention, that the appellant cannot be considered to have become an owner of estate on the basis of his ownership of the land acquired by him through gift.
This case was considered and distinguished by this Court in Muhammad Akhtar Chishti v. Ijaz Ahmad and 5 others (1982 CLC 1700). It also came up for consideration before a Division Bench of the Lahore High Court in Boota Ram v. Bagga Singh and another (AIR 1948 Lah. 103) and was commented upon disfavourably, as under:- "But the observation towards the end in 17 Lah. 322, was, I am afraid, rather loosely expressed and it was this observation on which stress was laid by learned counsel for the appellant. The observation is to the following effect:- "Moreover, the word 'estate' as defined in the. Punjab Land Revenue Act, in our opinion, applies to agricultural lands only and does not include any other class of property."
It was not necessary for the learned Judges to make this observation in that case and it was really in the nature of an obiter, for I can conceive of cases where the land may not become part of either urban or village irremovable property and may not yet be 'land' within the definition of the term as given in the Punjab Alienation of Land Act.'
5. Even on facts, Shah Muhammad's case is distinguishable inasmuch as there the land in dispute had been completely built upon. The reliance of the learned counsel on this case is therefore not apt.
6. For the above reasons I would hold that by acquiring the land by gift, the appellant (defendant- vendee) had acquired the status of an owner of estate equal to that of the pre-emptor- respondent. This appeal is accordingly allowed and the suit filed by the respondent is hereby dismissed leaving the parties to bear their own costs.