2. Subsequently realizing that the house in dispute was situated in the estate of Kalra Khasa where actually the house in dispute was situated, the appellant filed a better statement on 16-9-1958 with a view to clarify the position which according to him was not clear from the plaint. It was mentioned in the application that the house was situated in the abadi of Kalra Punian but the site underneath of the house in dispute was on the area situated in village Kalra Khasa.
3. The vendee-respondent denied the averments in the plaint and asserted that as the house in dispute was situated in Kalra Khasa and not in Kalra Punian the plaintiff-appellant was not an owner of that estate in which the house in dispute was situated, therefore, the suit did not lie.
4. Such a controversial position taken by the appellant in his suit should not have been accepted by the trial Court even by way of an amendment. But as it has already been done and the trial Court has framed one issue No. 4 and the decision given thereon it is not worthwhile at this stage to interfere. Issue No.4 is in the following manner: (4) Whether the house in dispute is situated in the abadi Kalra Punian or Kalra Khasa and what is its effect ?
5. There was another issue about the existence of the right of pre-emption in the appellant-plaintiff which is as under:- (1)Whether the plaintiff has better pre-emptive right than the defendant-- vendee.
Both these issues are inter-connected and in case it was proved that the house in dispute was situated in Kalra Punian the plaintiff-appellant was evidently an owner of that estate whereas such right relating to Kalra Khasa is under determination
6. The learned trial Court decreed the suit of the appellant-pre-emptor but in appeal it was dismissed. The learned counsel for the appellant has taken now the position before me that the house in dispute if situated in the estate of Kalra Khasa could be pre-empted by him on the ground that he was still an owner of that estate and in the alternative the house stood in village Kalra Punian and he is undoubtedly an owner of that estate.
7. Whether the house in dispute was situated in Kalra Khasa was the subject-matter of issue No.4, and this being a pure question of fact as finally determined by the learned lower Courts that it was situated in the estate of Kalra Khasa, it cannot be agitated now. The learned counsel has argued at length to substantiate that the appellant was an owner in the estate of Kalra Khasa where the house in dispute was situated and he had, therefore, a better right of pre--emption. He relied on the entries of the record of rights Exh.P.B. For the year 1953-54 pertaining to the estate of Kalra Khasa which show that the land on account of which he claims the right of pre-emption is assessed to land revenue and his right is not defeated its spite of the fact that its character might have changed and it was turned into a house. According to him the fact that it is assessed to land revenue is enough and that alone should determine that it was still a part of the estate.
8-9. I do not agree with this contention of the learned counsel. The perusal of Exh.P.B. Shows that the land was no more an agricultural land but was Ghair Mumkin Makan) i.e. The land is totally covered by houses and still it is assessed to land revenue. A piece of land may be paying land revenue but it would be out of the estate if its charater has changed by putting it to use permanently other than for agricultural purposes. Whether a house or other such superstructure is erected on land the intention of the owner shall be to convert it to all other purposes except agricultural and the land does not remain a part of the estate and its owner voluntarily walks out of the estate. From the definition of estate as given in Punjab Land Revenue Act it is apparent that an estate which would include land both the agricultural and non-agricultural as long as it does not form part of a village or urban immovable property which has been assessed the land revenue would fall within the definition of estate. But if a portion of the estate is by consent and permanent user fallen into the category of village or urban immovable property, although assessed to land revenue, would no more form part of the estate.
10. Two authorities AIR 1936 Lah. 202 and AIR 1948 Lah. 103 have cited at the Bar in connection with the matter when and under what circumstances the area once a part of the estate ceases to be so. The authority AIR 1936 Lah. 202 has been discussed at length by the Hon'ble Judges in Boota Ram v. Bagga Singh AIR 1948 Lah.
103. This ruling is a guideline for determination of the character of the land on the basis of which the pre-emptor has made his claim to pre-empt the house sold. It is observed by their Lordships as under:- As for the decision in 17 Lah. 322, no exception can possibly be taken to the conclusion at which the learned Judges had arrived and I respectfully agree with them that the decision of a learned Single Judge of this Court in AIR 1933 Lah. 213 was too general and the assessment of an 'area to land revenue cannot be the sole determining factor. To that extent I would will: respect agree with the decision of another Judge of this Court who was a party to 17 Lah. 322, See AIR 1929 Lah.
164. 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 urben or village immovable property and may not yet be `land' within the definition of the term as given to the Punjab Alienation of Land Act. The decision by Blacker J., in C.R. No. 798 of 1940 to which reference has already been made is one of such instances. If it is on the other hand convcrtcwd into building site, whether in a village or in a town, its owner, as to say, may be correctly stated to have walked out of the estate and ceased to have any connection with it any longer. But as long as it has not been put to any other substantial and permanent use and thus not brought into another category, it would not merely by non-user cease to be a part of the estate even if it ceases to be `land' within the meaning of the Punjab Alienation of Land Act. This is how the decision in 17 Lah. 322 was interpreted by Din Muhammad J, himself who was a party to that case when he was called upon to construe it in 42 PLR 108. I am, therefore, of the vitw that if an area does not fall within the definition of the 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 air: 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 for pasture does not cease 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."
11. In the above case, the property remained uncultivated for a number of years and it was termed as banjar qadeem in the revenue papers and their Lordships held that such property had not permanently changed its character, therefore, it remained a part of the- estate.
12.In the present case it is not disputed that the land on the bass of which the appellant wanted to pre-empt was completely built up and has permanently changed the nature of either agricultural land. This land is no more a part of an estate. The result is that the appellant has in the first instance failed to show that the property in dispute was situated in Kalra Punian where he held a better right. The house in dispute is situated in the estate of Kalra Khasa. The appellant pre-- emptor was some times an owner of that estate, but as the record shows, has now 6cen built upon therefore, the appellant has walked out of that estate and is no more an owner of any part of that estate. He has, therefore, no right of pre--emption over the house in dispute.
13. The result is that the appeal fails and .The suit of the appellant-pre--emptor is dismissed with costs.