This Regular Second Appeal relates to determination of character of the suit land situated in Mauza Rawalpindi Dehati, Tehsil and District Rawalpindi as to whether it is an urban agricultural land or urban immovable property.
2. The background of this case is that Pir Gul Badshah filed a suit for pre-emption on 5-4-1979 to enforce his superior right of pre-emption in respect of sale made through Registered Sale Deed dated 10-4-1978. In order to pre-empt, the property detailed in the plaint, is mentioned below:-
(a) I share in land Khewat No.367, Khasra No.809 (7 kanals 13 marlas), 1174 (3 kanals 14 marlas), 1171 (5 kanals 13 marlas), situated in Mauza Bambla Cantt. Tehsil and District Rawalpindi, according to Jamabandi for the year 1974-75.
(b) I share in land Khata No.194/267 Khasra No.12 (2 Kanals 4 marlas), I share in Khata No.195/268 (26 kanals 4 marlas), share in Khata No.198/271 (7 kanals 7 marlas), situated in Mauza Rawalpindi Dehati, Tehsil and District Rawalpindi, according to the Jamabandi relating to the year 1971-72.
The suit was filed to enforce the superior right of pre-emption being the real brother of the vendor and co-sharer in the land. The suit was resisted. A number of objections were taken in the written statement. Firstly, that the suit was beyond the pecuniary jurisdiction of the Court, that the land in dispute was within the limits of Rawalpindi Municipal Committee, and was urban immovable property. Secondly that the land was the part of colony, was acquired by the Department of Housing and Physical Planning through Notification dated 8-4-1974 and has not retained its character as agricultural land after the notification. Thirdly, that the suit was not valued for the purpose of court-fee correctly. A number of issues were framed between the parties but are not relevant to this Regular Second Appeal.
3. The main contest between the parties is on issue No.2 which is as follows:- (2)Whether the land in dispute is pre-emptible and is within the purview of Punjab Pre-emption Act? 'OPP
4. The learned Senior Civil Judge by his judgment and decree dated 14-5-1985 decreed the suit in its entirety. The appeal of the respondent vendee partly succeeded before the learned District Judge, Rawalpindi. The learned District Judge by his judgment and decree dated 29-9-1985 partly accepted the appeal, reversed the finding of the learned trial Court on issue No.2 in respect of the suit land situated in Mauza Rawalpindi Dehati Tehsil and District Rawalpindi, hereinafter described as "land" and concluded that the land was urban immovable property and according to him was not pre-emptible under Section 15 of the Punjab Pre-emption Act. Hence this appeal.
5. The record has been perused with the help of both the learned counsel. The arguments have been heard. Learned counsel for the appellant submitted that the finding of the learned District Judge on issue No.2 was legally erroneous as the District Judge has misdirected himself by placing total reliance upon Notification of Acquisition dated 8-4-1978, Secondly, that mere provision of civic immunities to the surrounding land was not adequate to determine the character of the land at the time of sale. Thirdly, it was urged that the learned District Judge did not examine the Jhar Paidawar of Rabi, 1980 where the land was clearly shown to be under cultivation and being used for agricultural purposes. Fourthly, the Khasra Girdawari EX.1 was discarded incorrectly. Khasra Girdawari Ex.Pl showed that the land in dispute had been in cultivation up to the year 1981-82.
Fifthly, it was contended that the learned first appellate Court missed the statement of local Commissioner PW3 who, also after spot inspection, found that the land in dispute was under cultivation. Sixthly, it was vehemently asserted that the finding of the learned trial Court on issue No.5 (whether the court-fee over the suit is to be levied ad valorem if so, what is the court-fee to be levied? OPD), was binding on the respondent who had not challenged the finding before the appellate Court. It was held by the trial Court that the valuation by the appellant on the basis of treating the land to be agricultural was correct. Learned counsel for the appellant supported his arguments by citing Sheikh Abdul Rehman and another v. Khan Sahib Haji Rashid Ahmad and another (AIR 1937 Lahore 182), Lal and others v. Muhammad Sharif PLD 1961 Lahore 47 and Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159.
6. Learned counsel for the respondent controverting the arguments of the learned counsel for the appellant supported the finding of the learned District Judge. Additionally, it was submitted by the learned counsel for the respondent that the finding of the learned District Judge that the land has lost its rural character and became urban immovable property at the time of sale was purely a finding of fact which was not open to scrutiny of this Court under Section 100 of the Code of Civil Procedure unless some misreading or non-reading was pointed out. The learned counsel further submitted that the land was acquired by the Department of Housing and Physical Planning for establishment of residential colony for Government servants, that the land became integral part of the colony, that the appellant-plaintiff himself along with other co-sharers made a statement before the Collector Land Acquisition that the land in dispute be released to him for the purpose of construction of mosque, langarkhana and madrassa. According to him, the land became the integral part of colony where the civic immunities of electricity, metalled road, electric poles and Sui Gas have been provided and so the land lost its rural character after 1974 and assumed the character of urban immovable property. Learned counsel for the respondent placed reliance upon Sheikh Abdul Rehman and another v Khan Sahib Haji Rashid Ahmad and another (AIR 1937 Lah.182), Ram Lal v. Municipal Committee Bhera and another (AIR 1946 Lah. 386), Allah Bakhsh v. Ilahi Bakhsh (PLD 1975 Lahore 359) and Ilahi Bakhsh and others v. Allah Bakhsh and others 1982 SCMR 457. In Sheikh Abdur Rehman's case, the Division Bench of the Lahore High Court laid down the following test for determining whether a property is to be treated as urban or rural in character: -
(i) the mere fact that the rural area is included within the limits of town, is not conclusive as the urban character of the area in question,
(ii) that rural area may lose its pre-existing character and then be absorbed in urban area in the inclusion of the rural area within the Municipal limits of the town is an important factor to be considered and determining the character of area in question, and
(iii) that each case is to be judged on its own merits.
Applying these tests to the case in hand, their Lordships considered the property to have lost its rural character by reason of the fact that it was included in Municipal Committee, the land in the vicinity had been converted into building plots and there were other factories in existence quite close to the site in dispute, it was also found that the old village site was occupied by the people not belonging to the original village community. In Allah Bakhsh v. Ilahi Bakhsh PLD 1975 Lahore 359, the learned Judge followed the principles laid down in Abdul Rehman v. Abdul Rashid AIR 1937 Lahore 182 and concluded that the mere entry of land as agricultural land in the Revenue Record and the Head Note of the sale-deed is not sufficient for treating it as agricultural land when the lands were sold in small pieces for construction purposes and the land had adopted character of urban immovable property. In Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159, the Supreme Court held "there is no evidence apart from the notification to show that there are other accompanying circumstances to justify a view that the property had lost its character as agricultural land and had acquired that of urban immovable property within the meaning of Section 388".
7. Applying the test deducible from the aforesaid judicial authorities, it is clear that the character of the land is to be assessed by the examination of facts in each case. In the case in hand, the local commissioner visited the spot and observed that the land is surrounded by roads, houses built by the residents of the colony which is known as Khaiban Colony. In the area buildings have been constructed by Government employees. There are metalled roads. Thel area has been provided electricity, electric posts in the streets have been fixed, the land was the part of notification of acquisition and A has become integral part of Housing Colony. It was released to the owner for the purpose of construction of mosque, madrassa and langarkhana specifically. The land is still the part of the colony. Jhar Paidawar is inadmissible piece of evidence, neither it was prepared in the discharge of the official duties nor it was tendered in the evidence. Similarly, the Khasra Girdawari does not further the case of the appellant pre-emptor. The finding of the learned District Judge is based upon the material placed on record, as such is not open to examination under section 100 of the Code of Civil Procedure. I, therefore, hold that the land stands absorbed in the Housing Colony, has not retained its rural character, is urban immovable property and is not subject to pre- emption. The result of whatever has been stated above, is that this regular second appeal fails and is dismissed without any order as to costs as the appeal involved the examination of a delicate question.