1. DURBAN SADIQ IKRAM, J.--In brief the facts of this appeal arc its .Follows:--
(1) Whether the plaintiff has superior right of pre-emption as against the defendant s-vendees?
2. O.P.P.
(2) Whether the suit is for the benefit of some outsiders. If so with what effect? O.P.D.
(3) Whether the plaintiff has waived his right of pre-emption if any? O.P.D.
(4) Whether the suit is untenable in view of preliminary objection No.3 the written statement? OPD.
(5) Whether the defendants-vendees paid Rs.410,000 to the tenant Sardar Muhammad. If so whether the same was in continuation of the original sale transaction and termed as part of the sale price? O.P.D.
(6) Whether the defendants-vendees have made improvements on the suit land, if so what is their value and with what effect? O.P.D,
(7) Whether the suit has been correctly valued for the purpose of court-fee and proper court-fee has been affixed thereon? O.P.P.
(8) Whether the suit is false and frivolous to the knowledge of the plaintiff. If so whether the defendants are entitled to special costs fro him and to what extent? O.P.D.
(9) Relief.
3. The learned Senior Civil Judge under issue No.1 held that the plaintiff had superior right of pre- emption as against the defendants. Issue No.2 was disposed of with an observation that defendants have failed to produce any evidence to prove that the suit was for the benefit of some outsiders. Issue No.3 regarding waiver was decided in negative. Similarly, issue No.4 was decided in negative with a finding that the defendants did not lead any evidence to prove that the suit was untenable in view of preliminary objection No.3 of the written statement. Issue No.5 was not pressed on behalf of defendants during trial of the suit and was accordingly disposed of. Issue No.6 was decided in negative with a finding that the defendants have failed to prove the improvements claimed by them. Issue No.7 regarding court-fee was decided in favour of the plaintiff. It was held under issue No.8 that the suit was not false, frivolous or vexatious. It was decided against the defendants. The learned trial Judge, therefore, vide the impugned judgment and decree, dated 10- 9-1980 decreed the suit of Asghar A.I plaintiff-respondent on payment of Rs.4,35,000 (four lac and thirty-five thousand only). Hence this appeal.
2. The appeal came up for hearing before us on 31-10-1988. It was brought to our notice that no opportunity was given to parties to adduce evidence in rebuttal of the additional evidence. We, therefore, directed the lower Court to receive evidence of each of the parties in rebuttal of the other party's additional evidence. In compliance with this order a Civil Judge 1 Class Toba Tek Singh recorded evidence of both the parties and submitted his report to us. We have heard the learned counsel appearing on behalf of the parties at great length and carefully gone through the record.
4. The learned counsel appearing on behalf of the parties addressee arguments only on issue No.1.
5. The findings on other issues in the impugned judgment were not challenged. Those are accordingly confirmed
3. It was contended on behalf of the appellants that Naseer Ahmad and Abdul Ahad defendants were co-owners of the estate in Chak No.328-J.B. Tehsil Toba Tek Singh District Faisalabad (now District Toba Tek Singh) and as such Asghar A.I plaintiff did not have a superior right to pre-empt the sale in question. It was submitted by learned counsel for the appellants that vide registered decd, dated 7-9-1974 land measuring one Kanal bearing Khewat No.121 Khatoni No.246, Square No.3, Killa No.23/1/3 in Chak No.328-J.B. Tehsil Toba Tek Singh was gifted by Dr. Nazir Ahmad, Mst.
6. Basturan Begum and Mst. Zantiran Begum to Dr. Naseer Ahmad and Abdul Ahad defendants on account of which they also became co-owners of the estate before institution of the present suit and as such it could not be said that Asghar A.I plaintiff had superior right of pre-emption. The learned counsel also referred to sale of four Kanals of land by Mst. Bashiran Begum in favour of Dr. Naseer Ahmad and Ch. Abdul Ahad vide sale---deed, dated 8-9-1974 presented for registration on 9-9-1974 and registered on 10-10-1974 but did not rely on same m support of his contention that the defendants were co-owners of the village on the basis of this sale-deed because it was presented on the day of fling of present suit and registered many days thereafter. The learned counsel for plaintiff-respondent controverted the contentions on behalf of the appellants and argued that defendants-appellants were not co-owners of the village and that Asghar A.I plaintiff had superior right to pre-empt the sale in question. It may here be observed that it is not disputed that Asghar A.I plaintiff was co-owner of the estate in Chak No.328-J.B. At the time of the sale of land in suit and at the time of the filing of present suit. The only question, therefore, that requires determination is whether firstly that the defendants were co-owners of the estate in Chak No.328- J.B. Tehsil Toba Tek Singh and secondly, whether the said land owned by them was agricultural land assessed to land revenue or not.
7. The plaintiffs besides examining oral evidence produced 17 documents in support of their case and in rebuttal to the evidence of the defendants. Similarly the defendants produced oral evidence and tendered 59 documents to prove their case.
8. EXh.Pl is the sale-deed in question by which the land in suit measuring 431 Kanals 7 Marlas was sold in favour of Dr. Naseer Ahmad and Abdul Ahad defendants. Exh.P.2 is copy of plaint dated 25-3- 1976 filed by Asghar A.I to pre--empt the sale of four Kanals of land by Mst. Bashiran Begum in favour of Naseer Ahmad and Abdul Ahad vide the sale-deed registered on 10-10-1974. This document is of no help to either of the parties because it pertain to the sale-deed registered after the institution of the present suit. Exh.P.3 is copy of the plaint, dated 24-2-1975 riled by Asghar A.I tost pre-empt the gift of one Kanal of land in favour of Naseer Ahmad and Abdul Ahad. This suit was later withdrawn as is clear from the copy of judgment, dated 12-6-1979 Exh.D41. Exh.P4, Exh.P5, Exh.P7, Exh.P8 and Exh.P9 are copies of Register Haqdaran 1973-74, which indicate that Asghar A.I plaintiff was co-owner of the estate in Chak No.328-J.B, Tehsil Toba Tek Singh. Copy of Register Haqdaran Exh.P6 for the year 1977-78 also indicates that Asghar A.I was co-owner of the estate but this document cannot be taken into consideration as having been prepared after the institution of suit. Exh.P10 is copy of Jamabandi 1973-74 relating to Khata No.217/121 Khatoni No.357, Square No.3, Killa No.23/1/3 measuring 3 Kanals 9 Marlas. This document indicates firstly, that one Kanal of land bearing Khasra No.23/1/3 measuring 3 Kanals 9 Marlas gifted by Dr. Nazir Ahmad and others to Naseer Ahmad and Abdul Ahad defendants vide gift deed, dated 7-9-1974 was Ghair Mumkin Abadi and secondly, that it was not assessed to land revenue. EXh.11 is copy of Mutation No.521, dated 16-11-1974 sanctioned on the basis of registered deed, dated 7-9-1974 regarding gift of one Kanal of land in favour of defendants. This document also would show that it was not assessed to land revenue. Exh.P12 is copy of an application under section 151, P.P.C. By Asghar A.I praying for permission to retract his statement made by him in his earlier suit to pre-empt the sale of one Kanal land. Exh.P13 is copy of the statement of Rehmat A.I P.W.I and EXh.Pl4 is copy of the written statement in the suit to pre-empt gift of one Kanal land in favour of the defendants. These three documents are not of any help to the plaintiff. Exh.P15 is copy of Khasra Girdawari from Kharif 1970 to Rabi 1974 regarding Killa No.23/1/3 in Square No.3 measuring 3 Kanals 9 Marlas. It indicates that the entire area was Ghair Mumkin Abadi. Exh.P16 is copy of Register Haqdaran 1973-74. It also indicates that Khasra No.23/1/3 was Ghair Mumkin Abadi and not assessed to land revenue. Exh.P17 is copy of Register Haqdaran 1984-85. It is not relevant and cannot be taken into consideration because it was prepared after institution of the suit.
9. As stated above the defendants produced 5(1) documents in support of their claim. The marking of some of these documents was incorrect. We have, therefore, corrected the incorrect marking.
10. Documents Exhs.D.l, D.2 to D.24 are receipts which were produced to prove improvements made by defendants on the suit land. We need not examine these documents because the findings under issue No.6 were not controverted before us. EXh.DI/1 (also marked as D.26) is copy of the gift deed, dated 7-9-1974 by Dr. Nazir Ahmad and others in favour of the two defendants. Exh.D2/1 is copy of Register Haqdaran 1973-74 regarding Khata No.217/121 Min, Khatoni No.357 Killa No.23/1/3 measuring 3 Kanals 9 Marlas in Chak No.328-J.B. Tehsil Toba Tek Singh. It indicates the entire land as Ghair Mumkin Abadi and not assessed to land revenue. Exh.D3/1 is copy of Khasra Girdawari for Kharif 1974 to Kharif 1977 regarding Khasra No.23/1/3. This relates to the period after institution of the suit and cannot, therefore, be taken into consideration to determine the question whether the land measuring one Kanal gifted in favour of the defendants was an agricultural land or not. Exh.D4/1 (also Exhibited as D25) is the sale-decd on the basis of which present suit was filed. Exh.D5/1 (also exhibited as D27) is copy of the sale-decd of 4 Kanals by Mst. Bashiran Begum in favour of Naseer Ahmad and Abdul Ahad. It was written on 8-9-1974, presented for registration on 9-9-1974 and registered on 10-10-1974 i.e. After the institution of present suit and as such the learned counsel for the appellants did not rely on the same in support of his contention that the defendants were co- owners of the estate in Chak No.328-J.B. At the time of institution of present suit. Exh.D28 and Exh.D29 respectively are receipt and agreement executed at the time of the sale of land measuring 431 Kanals 7 Marlas. Exh.D30 is copy of Registrer Haqdaran 1960-61 regarding Khata No.109 Khatoni No.247 Square No.3, Khasra No.23 Min measuring 4 Kanals 18 Marlas. It indicates that the entire land was Nehri and assessed to land revenue. Exh.D31 is copy of Register Haqdaran 1961-62 showing Khata No.112/109 Khatoni No.205 Khasra No.23/1/3 measuring 4 Kanals 18 Marlas as Nehri and assessed to land revenue. Exh.D32 is copy of Register Haqdaran Khata No.118/112 Khatoni No.228 Khasra No.23/1 measuring 4 Kanals 18 Marlas as Nehri and assessed to land revenue. Exh.D.33 is copy of Register Haqdaran 1977-78 of Khata No.260/217 Khatoni No.276 Khasra No.23/1/3 measuring 3 Kanals 9 Marlas as Ghair Mumkin Makan and one Kanal as Nehri and not assessed to land revenue. This document relates to the period after the institution of present suit. EXh.D34 is copy of Register Haqdaran 1981-82 regarding Khata No.274/258 Square No.54. This document is excluded from consideration firstly, because it was prepared after the institution of the suit and secondly, because it relates to Square No.54, not involved in present suit. Exh.D35 is copy of Khasra Girdawari from Kharif 1978 to Kharif 1981 and Exh.D36 is copy of Khasra Girdawari regarding Kharif 1986 pertaining to Khasra No.23/1/3. These documents also relate to the period after the institution of the present suit. Exh.D37 is copy of Khasra Girdawari of Khasra No.21/2 Min of Square No.54 with respect to Kharif 1982 to Rabi 1986. This land is also not involved in present suit. Exh.D38 is copy of statement, dated 30-10-1978 made by Asghar A.I plaintiff as his own witness in suit for possession by pre-emption of one Kanal land gifted in favour of Naseer Ahmad and Abdul Ahad defendants. In this statement it was admitted by Asghar A.I that the land measuring one Kanal was an agricultural land. Exh.D39 is notification, dated 3-3-1958 extending the limits of Municipal Committee Toba Tek Singh and D40 is the plan showing extended limits of Municipal Committee.
11. Exh.D42 is copy of Dhal Bachh regarding Kharif 1975 which indicates that Naseer Ahmad paid land revenue for that crop. D43 is copy of Register Haqdaran 1981-82 regarding Khata No.345 Khatoni No.485 Square No.35 to show that the land was Government Charagah and that the land in Squares Nos.13 and 30 was Abadi Deh. Exh.D44 is copy of Register Haqdarah 1969-70; D45 is Register Haqdaran 1973-74; D46 is copy of Register Haqdaran 1977-71) and D47 is copy of Register Haqdaran 1981-82 pertaining to Squares Nos.33 and 34 in dispute. The documents D48 Registrer Haqdaran 1969-70, pertaining to Square No.6, D50 Register Haqdaran 1973-74 pertaining to Khasra No.23/2 in Square No.3, D51 Register Haqdaran pertaining to Khasra No.23/2 in Square No.3 and Khasra Girdawaris Exhs.D54 to D58 for crops Kharif 1970 to Rabi 1981 regarding land bearing Khasra No.23/2 of Square No.3 and land in Squares No. 1, 2, 6, 7 and 8 are excluded from consideration firstly, because these do not pertain to the land involved in this suit and secondly, because same were prepared after the institution of present suit. Exh.D59 is copy of Warabandi. It does not contain the description of the land irrigated in pursuance to this Warabandi.
12. On examination of various documents produced in evidence by the parties it will be appreciated that the land measuring one Kanal bearing Killa No.23/1/3 of Square No.3 in Chak No.382-J.B. Was Ghair Mumkin Abadi and not assessed to land revenue before institution of the present suit. This is amply proved by the copy of Jamabandi P.10, copy of mutation P.11, copy of Khasra Girdawari P.15, copy of Register Haqdaran P.16 and copy of Register Haqdaran Exh.D2/1 produced by the defendants themselves. The copies of Revenue record relied upon by defendants to prove that one Kanal land gifted to them was agricultural land relate to the period after the institution of the suit and cannot be taken into consideration firstly because some documents relate to land not in any manner connected with the present suit and secondly, because some were A prepared after the institution of present suit. It was held in the Province of East Pakistan v. Major Nawab Khawaja Hassan Askary PLD 1971 SC 82 that rights of parties must be determined as on date of suit and not on the basis of rights accruing after institution of the suit.
13. The learned counsel for the appellants laid much emphasis on the statement Exh.D38, dated 30- 10-1978, in which Asghar A.I plaintiff admitted that the gifted land measuring one Kanal was agricultural property, to contend that the defendants were co-owners of the estate in Chak No.328-J.B. At the time of the institution of present suit. We have carefully examined this aspect of the case and find the contention on behalf of the appellants as without any merits. A perusal of the copy of Mutation No.521, dated 16-11-1974 Exh.P.11 sanctioned in favour of Naseer Ahmad and Abdul Ahad defendants regarding gift of one Kanal and in Khasra No.23/1/3 would show firstly, that this land was not assessed to land revenue and secondly, that it was not recorded as an agricultural land. Copy of Jamabandi P.10, copy of Register Haqdaran P.16, copy of Khasra Girdawari P.15 and copy of Register Haqdaran Exh.D2/1 proved that the entire land measuring 3 Kanals 9 Marlas of Khasra No.23/1/3 was Ghair Mumkin Abadi and not assessed to land revenue. This would mean that the admission made by Asghar A.I in his statement, dated 30-10-1978 was factually incorrect and against I the entries of Revenue record. This being the situation the statement Exh.D38 cannot be considered of any help to the defendants. It was held in Ahmad Khan v Rasool Shah (PLD 1975 SC 311) that "admission of facts are only relevant, and not conclusive and, therefore, may be shown to be wrong". In Sher Aram v. Mst. Tareena (1983 CLC 3157) it was held that "an admission in conflict with' Revenue record would not adversely affect rights of the parties'. In Main Chand and others v.
14. Rupa and others (AIR 1932 Lah. 651) it was held that "admission B being based on erroneous state of affairs could not bind landlord or his successors". Asghar A.I plaintiff through his application (Exh.Pl2) retracted his admission. It was held in Sita Ram v. Pir Bakhsh (AIR 1931 Lah. 6) that a decree-holder making an erroneous admission in an application accompanied by an affidavit is entitled to retract that admission". The admission in statement I Exh.D38 was made during cross- examination. The said admission cannot be used against Asghar A.I plaintiff firstly, because the same appears to hive been made under some misconception and secondly the said admission was erroneous and against the Revenue record. The learned counsel also placed reliance on Dhal Bachh Exh.D42. This cannot be taken in consideration because it relates to crop Kharif 1975 i.e. After the institution of the suit.
15. On an overall assessm ent of oral as well as documentary evidence produced by the parties we are of the view that the land measuring one Kanal in Khasra No.23/ 1 /3 of Square No.3 in Chak No.328- J.B. Was not an agricultural land nor was it assessed to land revenue. It was held in Chanan Din v.
16. Chanan Din (AIR 1933 Lah. 213) that "in deciding whether a person is an owner of an estate within the meaning of section 15(c) thirdly. The determining factor is whether the area in question is or is not assessed to land revenue. Its existence, situation and the purpose for which it is bought or to which it may be devoted is absolutely immaterial." The land measuring one Kanal gifted in favour.
17. Of Naseer Ahmad and Abdul Ahad defendants was not assessed to land revenue, at the time of sale or at the time of institution of the present suit and also at the time it was gifted to them it was not an agricultural land. It was Ghair Mumkin Abadi (Residential) land. One Kanal land in Killa No.23/1/3 was not assessed to land revenue. As such Naseer Ahmad and Abdul Ahad defendants could not be considered co-owners of an estate in village 328-.1.B. They could, therefore, not defeat the superior right of pre-emption asserted by Asghar A.I plaintiff.
4. As a result of the above discussion the findings under issue No.1 are upheld. The impugned judgment and decree, dated 10-10-1980 is maintained. This appeal is dismissed leaving parties to bear their own costs throughout.
18. H.B.T./N-202/L