Munir A. Sheikh J.- This is plaintiffs second appeal arising from the suit for possession of land through preemption, against judgment and decree dated 27.1.1985 passed by the learned lower appellate Court accepting the appeal of the respondents from judgment and decree dated 29.5.1984 passed by the learned trial Court decreeing the suit of the appellant.
2. The learned lower appellate Court under issues 3 and 4 held that the land in dispute was Urban Immovable Property therefore, was not preemmptible. Learned counsel for the appellant maintained that findings recorded by the learned lower appellate Court on issues 3 and 4 are based on mis-reading and non-consideration of material evidence whereas the findings of the learned trial Court recorded on these issues in favour of the appellant were based on the material brought on the record through evidence.
3. In order to appreciate the contentions, I have examined judgments of both the Courts below as also the evidence. In the writtenstatement, it was stated by the respondents that the land in dispute was situated within the limits of Lahore Municipal Corporation, Lahore and had been sold for the purpose of constructing a house over it and was an urban immovable property. It is manifest from jamabandi for the year 1962- 63(Ext.P3) that the land comprising khasra numbers 625 measuring 2 kanals 19 marlas was purchased by Ilam Din from its previous owners Ferozc Din etc. This Ilam Din later on died and the land was mutated in favour of his heirs including Mst. Iqbal Begum the vendor through mutation Ext.P4.In the jamabandi for the year 1961-62, the land ,has been described as Nehri, Chahi. The sale in question was made by Mst.Iqbal Begum through sale- deed executed on 5.9.1974 and registered on 9.9.1974 which was produced in evidence as Ext.Dl. The respondent was required to establish his plea that it was urban immovable property at the the of sale. The case of the respondent was that it was purchased by him for constructing a house over it and that the land was surrounded by houses already constructed around it. The said sale-deed Ext.Dl which is the basic document through which the respondents purchased the property shows that the land was described therein as Nehri Chahi. The surrounding of the land given in this sale- deed are as follows.
East: Land of Din Muhammad.
West: Land of Mohammad Yousaf.
North: Land of Khurshid Begum.
South: Land of Muhammad Sadaq.
There is no mention in this sale-deed that it was purchased by the respondents for constructing a house over it. Had there been houses surrounding the said land at the the of its sale and the land was not under cultivation the same would not have been so mentioned as Nehri Chahi in this sale- deed. There is no explanation available on the record for this material omission. In the khasra girdawaris for the years 1970 to 1975 the land has been shown under cultivation and in possession of Mehraj Din. The correctness of entries of these khasra girdawaris was held to have been rebutted by the learned lower appellate Court merely on the ground that Taj Din plaintiff stated that he was in possession of the land whereas his brother Mehraj Din who was examined as P.W.2 stated that he was in possession. It has altogether been ignored that there was no contradiction in the statements of both the persons regarding the nature of the land i.e. a land which was being cultivated. Apart from this according to observations of the learned lower appellate Court, the land was jointly owned by plaintiff with his brother Meraj Din P.W therefore, if both of them stated that they were in cultivation possession of land, they could not be said to have contradicted each other.
4. Another factor which influence the mind of the learned lower appellate Court in concluding that the land was Urban Immovable Property was that P.W.2 Meraj Din admitted that he had sold his land after making plots which was taken to mean that he sold the same for purpose of construction. It is in the evidence of Meraj Din that he sold his land after making plots to years after the sale in dispute. As has been stated above, it was the date of sale in question with reference to which the question of nature of the land was to be decided. This part of the statement of Meraj Din has been ignored. The appellant when examined himself clearly stated that the land had been under cultivation. The learned lower appellate Court took into consideration his statement in the cross-examination in which he stated that on to sides of the land there wee houses. Learnt lower appellate Court took into consideration this part of the statement without applying its mind that the statement was recorded on 16.11.1980 i.e. After about six years of the sale. There is nothing in the cross-examination to indicate that it was suggested to him that there were houses on to sides of the land at the the of sale. The said part of his statement is asfollows................................................................................................................................ .................................... Which clearly shows that he was asked about the factual position obtaining at the spot at the the when he was making that statement i. e. 16.11.1980. The statement of Muhammad Yasin D.W.l to the effect that the land was purchased for the purpose of construction was of no evidentiary value as discussed above as this fact was not got incorporated by the respondents in the sale deed itself (Ext.Dl) in which the land was shown to be the Nehri Chahi. The evidence of Muhammad Yasin therefore, was an improvement in the case of the respondents which was not worthy of any credit which has not been taken into consideration.Apart from what has been discussed hereinbefore mere intention of the purchaser to purchase the property for construction would not change the character of the property which has to be decided according to the position of the property as to its nature at the the of sale. The evidence of defence witnesses taken into consideration by the learned lower appellate Court shows that none of them specifically stated about the nature of the land at the the of slae except a general statement that it was vacant for the last 10 years having not been cultivated. Such oral statements were fully contradicted by documentary evidence such as khasra girdawri and Jamabandi Ext.P6 and P5/respectively.The contents of these documents could bot be ignored. As against this documentary evidence none of the D.Ws stated that there were houses around the land at the the of sale. They appear to have stated about the position at the spot at the the of making the statements in the year 1981 which was not relevant for determination of the real question i.e. Nature of land at the the of sale. D.W.3 Muhammad Ashraf admitted in the cross- examination that electric connection was given to Poltary Form etc six months before and to the houses about three years prior to his statement made in 1981. It is also in his evidence that Water Supply from Corporation was given about six months before his statement was recorded in December, 1981.
5. It goes without saying that the onus of proof about the nature of property at the the of sale was primarily on the respondents/defendants. It was he, who was required to prove by positive evidence that the property was urban immovable property at the the of sale. As noticed above, the only part of statements of D.Ws relatable to the period prior to the sale about the nature of land is that it was vacant since 10/11 years.Their statemente were recorded some-where in 1980-1981.
Except this part the entire other evidence of D.Ws about the nature of property relate to the position at the spot at the the when they were making the statements. In this view of the matter, the learned lower appellate Court can safely be hald to have mis-construed and mis-rcad their evidence in assuming that they stated about the position of the land at the the of sale. In the Jamabandi for the year 1962-63 (Ext.P3)the land has been recorded as agricul tural land under cultivation.Unless contrary was established it is possible to hold that these entries were repeated and carried in the revenue record for the subsequent years. The approach of learned lower appellate Court for discarding the entries of jamabandi for the year 1962-63 in this context is also illegal.
6. The findings of the learned trial Court on the other hand are based on elaborate and careful appraisal of the material brought on record through evidence by the parties. The findings of the learned lower appellate Court are based not only on mis-reading of the evidence but also on non- consideration of material aspects of the case.
7. Having realized this difficulty, learned counsel for the respondents argued that in fact the learned trial Court did not frame the issues in proper form. He maintained that instead of framing an issue directly on the point whether the land in dispute was an Urban Immovable Property, the to issues were framed to the effect whether the suit land was not Nehri/Chahi at the the of sale and whether the sale in dispute was not preemptible as it related to property situated within the limits of Lahore Municipal Corporation which caused prejudice to the respondents as they could not produce evidence to establish that the land was Urban Immovable Property. I am afraid the argument has no merits. No such objection was raised before the learned lower appellate Court though the decree had been passed against the respondents by the learned trial Court. No plea was also raised in the memo of appeal that due to alleged improper form of issues the respondents were prejudiced in that they were mis-led as to the nature of evidence which was required to be produced. Even otherwise, the alleged improper form of issues was insignificant inasmuch as the respondents were aware that the suit was being contested on the ground that the sale was not preemptible because the property was Urban Immovable Property. He in fact led evidence. At this stage this plea that proper issues were not framed cannot be allowed to be raised. No prejudice has been caused to the respondents on this account.
8. The impugned judgment and decree passed by learned lower appellate Court for the foregoing reasons suffers from mis-reading and nonconsideration of material evidence on record there fore the same is illegal and not sustainable. This appeal is accepted. The said judgment and decree is hereby set aside and that of the learned trial Court restored. The parties are left to bear their own costs.