LEHRASAP KHAN, J.--Land measuring 1 kanal and 6 marlas, the subject-matter of this litigation, which is situated in the revenue estate of Girjakh, suburb of Gujranwala Town, was purchased by Noor Muhammad and Abdul Ghafoor sons of Nawab Din, the respondents herein, through registered sale--deed dated 9-1-1976.
2. The appellants viz. Muhammad Abdullah and Muhammad Ali sons of Wali Muhammad pre- empted the sale claiming better right of pre-emption inter alia on the ground that they were owners in the estate while the defendants were strangers.
3. The suit was, of course, resisted by the respondents who pleaded inter alia that they purchased the land for residential purposes. It was not an agricultural land and that it was in fact urban property and thus it was not pre-- emptible unless the pre-emptors proved the existence of custom of pre-emption in the locality in which it was situated.
4. Necessary issues arising out of the parties' pleadings were framed. After recording the parties' evidence and after hearing them, the learned trial Court found that the suit land was agricultural land and the sale was, therefore, pre---emptible. Consequently, the appellants' suit was decreed on 1-4-1978.
5. The respondents preferred an appeal before the learned District Judge, Gujranwala. During the hearing of the appeal, the learned District Judge recorded statements of four Courts witnesses as additional evidence. The witnesses thus examined were CW.1 Muhammad Ali Patwari, CW.2 Munawar Hussain, Qanoongo, CW.3 Abdul Latif, Additional Patwari and CW.4 Shamasuddin Patwari.
Certain copies of the revenue record were also got placed on the record of the learned Appellate Court. On the basis of the additional evidence, the learned District Judge found that the suit land was urban property at the time of sale and, therefore, it was not pre-emptible, as existence of customs in the area where the property was situated was not proved. He, therefore, accepted the appeal, set aside the trial Court's judgment and decree and dismissed the appellants' suit. It was so done through judgment and decree dated 15-7-1979.
6. The present regular second appeal is directed against the aforesaid judgment and decree dated 15-7-1979 passed by the learned District Judge, Gujranwala. This second appeal was earlier heard on 8-4-1984 and was disposed of through judgment dated 11-4-1984. In the said earlier judgment it was observed that the additional evidence was recorded by the learned lower appellate Court in violation of provisions of Order XLI Rule 27, C.P.C. And in fact no request was made by the respondents orally or in writing for additional evidence. It was also noticed that no reason has been recorded by the learned District Judge for summoning four revenue officials who have been examined as Court witnesses.
7. Nevertheless the additional evidence thus recorded was also considered and analysed. It was concluded that the land in dispute was agricultural land at the time of sale as was held by the learned trial Court and that it was erroneously held by the learned District Judge that it was urban property to pre-empt which it was essential for the appellants to prove the existence of custom of pre-emption. Thus, through judgment dated 11-4-1984 regular second appeal was accepted and judgment and decree passed by the learned District Judge on 15-7-1979 was set aside while the judgment and decree dated 1-4-1978 passed by the learned trial Court was restored. The respondent, however, challenged the judgment dated 11-4-1984 passed by this Court before the learned Supreme Court of Pakistan. The said august Court through its judgment, dated 15th May, 1988, has been pleased to find that the learned District Judge was justified to examine the additional evidence as the situation before him was fully covered by provisions of Rule 27(1)(b) of Order XLI, C.P.C. It was further observed "Although the learned Single Judge did examine the additional evidence admitted by the District Judge it is quite apparent that in assessing its probative value, he was influenced by the consideration that the learned District Judge had acted illegally in bringing the same on record. Learned counsel appearing for both the parties agreed that the appeal maybe remanded to the High Court for a fresh decision.
8. In respectful compliance with the directions of the learned Supreme Court of Pakistan, the learned counsel for both the parties have again been heard and the relevant record has been perused and considered. In the light of the additional evidence recorded by the learned District Judge, he came to the conclusion." From the above resume of the testimony of "Revenue officials examined as Court witnesses it is obvious that originally in the khasra girdawari as well as in the jamabandi of 1974-75, the land in suit was described as ghair mumkin ihatajat', which signified its residential character but these entries were unauthorisedly changed by Shamas-ud-Din Patwari sometime after the institution of the suit, presumably at the instance of the plaintiffs/respondents, in order to strengthen their case. By this interpolation he tried to change the nature, use and character of the disputed property by fictitiously showing it not only agricultural land under cultivation but also changed the nature of possession by showing Abdullah (plaintiff-respondent) in possession thereof as tenant-at-will instead of owners being in possession. This change in the cultivation column of the Jamabandi was brought about perhaps with a view to support the pre- emption claim of Abdullah plaintiff/respondent based on tenancy".
9. In the earlier judgment of this Court dated 11-4-1984, evidence based on the testimony of the aforesaid four Court-witnesses has thoroughly been analysed in paragraph 7. As a result of that analysis, it has been found that the suit land at the time of sale as also at the time of institution of the suit was agricultural land and not an urban immovable property. The presumption arrived at by the learned District Judge in the impugned judgment that the revenue officials made unauthorised correction in khasra girdawari register after the institution of the suit in order to help the appellants is falsified by the fact that the change in khasra girdawari register in regard to suit land was made as back as 24th October, 1974 i.e. Long before this land was purchased by the respondents. This change has been evidenced by report No.261 of patwari's roznamcha waqiati, dated 24th October, 1974. Copy of that report stand exhibited with the learned lower appellate Court's record as Exh. R.2. In the circumstances, it cannot justifiably be said that revenue officials made unauthorisied correction in khasra girdawari register after institution of the suit in order to help the appellants. In the sale-deed itself the land in dispute has been described as non-urban. In Exh.11, a copy of Jamabandi entries pertaining to the land in dispute for the year 1974-75, it is mentioned that the suit land was assessed to land revenue. Contents of Exhs. P3 and P4, copies of khasra girdawari entries, reveal that since kharif 74 the suit land used to be cultivated and Abdullah occupied this land as tenant in Kharif 1975. In the light of the contents of Jamabandi entries and khasra girdawari entries seen in perspective of the entries of report No.261 of patwari's roznamcha waqiati dated 24th October, 1974 it transpires that at the time of sale as also at the time of institution of suit, the land in dispute was an agricultural land where crops were being sown.
It is a common ground between the parties that this land was included in the municipal limits in Gujranwala town subsequently. Even such inclusion would not make any difference because the land retained its character of an agricultural land. By having been included in the municipal limits it did not become urban immovable property to pre-empt which it was obligatory to prove existence of custom of pre-emption in the concerned locality. Reliance on behalf of the respondents has been placed on PLD 1986 Lahore 242, PLD 1982 SC 96,1989CLC225,PLD1956SC309, 1981SCMR1183; 1985SCMR1, 1982 CLC 1643, 1982 CLC 208 and AIR 1924 Lahore 557, but all these judgments are distinguishable on merits.
10. For the foregoing conclusions the present second appeal is accepted with costs and the impugned judgment and degree passed by the learned District H Judge, Gujranwala are set aside while the judgment and decree dated 1-4-1978 passed by the learned Civil Judge, Ist Class, Gujranwala are restored.