JUDGMENTFAZAL KARIM, J.--This will dispose of R.SA. Nos.203 and 204 of 1977 and Civil Revision No.511 of 1977.2. The facts giving rise to these appeals and revision are as follows.
The land in suit comprised khasra Nos. 1110/748 measuring 8 kanals 14 marlas and 747 measuring 9 kanals 9 marlas. It was part of a joint khata owned by two brothers Muhammad Jameel Khan and Muhammad Ajmal Khan. Muhammad Jameel Khan sold these specific khasra numbers by means of two deeds of sale dated 28.7.1967 and 21.10.1967 in favour of Muhammad Sadiq and Muhammad Siddique.
3. Three suits were instituted in regard to these sales; one was by Muhammad Ajmal Khan and the other two by Abdul Aziz and Abdur Rehman (also brothers inter-se). The first was for a declaratory decree to the effect that the land in suit being a part of the joint khatta. The sale of the specific numbers would not affect his rights as a co-sharer. The suits by Abdul Aziz and Abdur Rehman were suits for possession by pre-emption; their claim was founded upon their being owners in the estate. That they had a preferential right of pre-emption is not now disputed.
4. The defendants in the suit of Muhammad Ajmal Khan, plaintiff, were Muhammad Jameel Khan, vendor, and Muhammad Sadiq and Muhammad Siddique vendees. Abdul Aziz and Abdur Rehman wefe also made defendants in that suit. The defendants in the suits of AbduJAziz and Abdur Rehman were Muhammad Sadiq and Muhammad Siddique, vendees.
5. The suit of Muhammad Ajmal Khan was contested; it was dismissed by the judgment of the learned Civil Judge, Sheikhupura, dated 19.4.1976 and Muhammad Ajmal Khan's appeal was dismissed by the judgment of the learned Additional District Judge, Sheikhupura, dated 10.5.1977.
This is the revision petition by him.
6. One of the grounds, on which the suits of Abdul Aziz and Abdur Rehman, plaintiffs in the pre- emption suits, were contested, was that the land in suit was not agricultural land and was not pre- emptable and the issue reflecting this ground was issue No.5-A, namely, whether the suit land was not an agricultural land, so its sale was not pre-emptable, The learned Civil Judge by his judgment dated 15.10.1974 found that issue in favour of the vendee-defendants and dismissed the suit. The learned Additional DistrictJudge,however, reversed that finding by his judgment dated 9.3.1977 and decreed the suits. This is the only question that survives for decision in these appeals.
7. As regards the suit of Muhammad Ajmal Khan, petitioner, (Civil Revision No.511), it will be sufficient to refer to the findings of fact and the conclusions thereon recorded by the learned Additional District Judge. They are as follows; "The plaintiff admits that out of the total joint holding, his share was 1 1/4 squares and that the share of his brother Muhammad Jameel defendant No.5 was also 1 1/4 Squares. The land in suit measures only 18 kanals 5 marlas. It is not the case of the plaintiff, nor was it shown by any evidence, worth the name, that the impugned sale effected through regi-stered sale deeds (copies P.3 and P.4 dated 28.7.1967 and 21.10.1967) was beyond the total share of Muhammad Jameel Khan co-sharer alienor. Muhammad Ajmal Khan plaintiff also admits in his statement dated 16.3.1976 (this was his second statement before the lower court) that the disputed land was, at the time of sale, in the possession of Muhammad Jameel vendor. Now in the copy of Khatauni Paimaish Ishtimal (Ex.P.2) in the cultivation column, I find the name of Muhammad Jameel Khan Hissadar (vendor) in addition to the names of the vendees Muhammad Sadiq and Muhammad Siddique defendants 1 and 2. The alienor was owner of an undivided khata in common with his real brother, plaintiff- appellant. Defendants 1 and 2 are vendees of the land from Muhammad Jameel Khan, co-sharer. The defendant-vendees are, in law, clothed with the same right as Muhammad Jameel Khan vendor had in the joint property. Muhammad Jameel Khan was factually in possession of the disputed khasra numbers, which formed a part of joint land. The deeds Ex.P.3 and P.4 do show (and this fact is not rebutted by any evidence worth the name,) that the vendor transferred the possession of the land in suit to the vendees defendants 1 and 2. Now so long as there is no partition between the co-sharers defendants Nos. 1 and 2/vendees must be regarded as having stepped into the shoes of their transferor. Muhammad Jameel Khan defendant No.5 qua his ownership rights in the joint property, to the extent of the area purchased by them especially when we have seen that the area in question does not exceed the share which the transferor owns in the whole property. The alienation of the specific fields transferred to defendants 1 and 2, would entitle these defendants to retain possession of the specific land in dispute till such time as an actual partition, by metes and bounds, takes place between the co-sharers. Similar were the observations made by their Lordships of the Supreme Court in a case reported as PLD 1959 S.C.9. Thus the impugnecbsale of the specific fields is not void orinvalid. The lower court's findings on all the issues are confirmed".
8. The correctness of this statement of fact has not been challenged before me. Learned counsel for the revision petitioner argued that in view of the findings of fact, recorded by the learned Courts below, the suit deserved to be decreed. In his view, the learned Courts below misapprehended the nature of relief claimed by the petitioner. In this behalf, he referred to the observation of the learned Additional District Judge, namely, "thus the impugned sale of the specific fields is not void or invalid". According to him, it was not the petitioner's case that the sales were wholly void; his case according to him, was that the sales were ineffective and void as against his rights as a co-sharer.
Learned counsel for the respondents on the other hand submitted that in view of the legal position, rightly enunciated by the learned Additional District Judge, the petitioner had no cause of action and was, therefore, not entitled to the relief claimed.
9. There is no question that it was not open to the petitioner to have the sales in question declared wholly void and non-existent. The draftsman of the plaint, it appears, was fully cognizant of this legal position and was careful in asking only for the relief that the sales were ineffective as against the petitioner's rights. That the petitioner was entitled to ask for such a relief admits of little doubt.
When specific numbers forming part of a joint holding are transferred accompanied by physical possession, as it happened in this case, it always gives rise to an apprehension in the minds of the other co-sharers that something harmful to their interest as co-sharers has been done. Such a suit is, therefore, necessary not only to remove that genuine apprehension but also to disabuse the vendee of any mis-conception as to his rights in the land purchased by him. There was an added reason for such a relief in this case. It was stated in the sale deeds as also in the corrigendum ( P.5) which was executed by the vendor Muhammad Jameel Khan in explanation of the deeds of sale that the khasra numbers in dispute were part of the land which had fallen to his share in private partition. The true position appears to be that there was no private petition partition. Therefore, in view of the findings recorded by the learned courts below, more particularly by the learned Additional District Judge, the suit should, in my judgment, have resulted in a decree in the petitioner's favour.
10. For these reasons, I would accept the revision petition, set aside the judgments and decrees of the learned courts below and grant the plaintiff, petitioner herein, a decree for a declaration that the sales in question would not affect his rights as a co-sharer. The parties are, however, left to bear their own costs.
11. Before coming to the pre-emption suits, it should be mentioned that the present number of Khasra No. 1110/748 is Killa No. 10/1 of square No.42 and the present number of Khasra No.747 is Killa No.Ll of square No.42.
12. The principles which apply in reversing the finding of fact----- u., pirct a Pnnrf which is at variance with that of the learned trial Courts were laid down in Madan Gopal and 4 others V. Maran Bepari and 3 others (PLD 1969 S.C.617). They are that the finding of the First Appellate Court.
"Will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding. Such a finding by the lower appellate court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first court which have been disfavoured in the contrary finding. The finding being at variance with that of the trial Judge, the two will naturally come in for comparison for their comparative merits in the light of the facts of the case and the reasons on which the two different findings have respectively proceeded. If the finding of the first appellate court cannot be supported on the evidence on record or it has failed to take into account a material piece of evidence on record or if it has failed to take a logical basis for differing from the finding of the trialcourt or is otherwise found to be arbitrary or capricious, it will have to be rejected in second appeal".
13. The appellants called there witnesses, namely, the vendor Muhammad Jameel Khan, Muhammad Ilyas Khan and Mr.Muhammad Siddique Bhatti, Advocate, to prove that the land in suit had ceased to be agricultural land and had assumed the character of urban immovable property.
Muhammad Jameel Khan stated that there stood a small house on the land; that the land had also a boundary wall and that at the date of sale, it was sakni and he had sold it for sakni purposes.
Muhammad Ilyas had prepared the site-plan (Exh.D5), showing the disputed land in red ink; its purpose was to show the location of the land in dispute and to indicate the factories and other buildings surrounding it. Mr. Muhammad Siddique Bhatti, Advocate stated that the land had remained vacant since 1960; that there was a residential bungalow on its West; that there was a mill called Modern Rice Mills in front of the land across the main road and that he himself owned a factory contiguous to the rice mills. The plaintiffs' evidence on the other hand consisted of the testimony of Said Muhammad, Imam Din and Siraj Din PWs the substance of their evidence being that the land was agricultural land and had not lost that character. Abdul Aziz plaintiff who appeared into the witness-box admitted that the land in suit had been included within the municipal limits and those limits had been extended to the Sun Shine Cotton Mills which was at a distance of five miles from the land in dispute.
14. The findings recorded by the learned Civil Judge were as follows:"It is clear from the evidence on the record that the suit property is situated on the Sheikhupura-Lahore Road and that it has since been included within the Municipal Limits. The plaintiff has himself admitted the office of the SDO High Ways Dcplt. Is adjacent to the disputed property. The plaintiff has also himself admitted that the suit land is not under cultivation for the last one year and that a boundary wall of the disputed property has been constructed. The admission of the plaintiff contradicts P.W.l Said Mohd, P.W.2 Imam Din and P.W.3 Siraj din who have stated that this property is still under cultivation. The plan Ex.D.3 which has been proved by Mohd Ilyas D.W.6 shows that the disputed property is situated at a short distance from main bus stand of Sheikhupura and that all the land up to and in front of the disputed property is occupied by various Rice and Flour Mills and other factories. The plaintiffs have not been able to rebut this plan. DW. 7 Mohd Siddique Bhatti Advocate has also supported the defendants and there is no reason to disbelieve this witness. The plaintiffs have not ascribed any cause which has motivated this witness to depose falsely against the plaintiffs. In the present case, it is clear from the evidence that the disputed property has not been cultivated since 1960 and all the plots of land in the vicinity have been constructed upon."
The learned Civil Judge then referred to the provisions of sections 15 and 16 of the Punjab Pre- emption Act, 1913 and a precedent case and concluded: "In the present case the site in dispute is surrounded by road or buildings. In this case buildings have been constructed by Govt, which are occupied by Govt, employees and there are other buildings in which mills and factories are operating. There are metalled road. Area has been electrified and this property is situated at a short distance from the main bus stand. The site is obviously situated in an area where people other than the original villagers live and they do not follow the original pursuits for their livcli-hood. It is clear from the above that this locality is now a suburb of town of Sheikhupura and it has to be treated as such. It is, therefore, held that the site in dispute is no longer a part of village immovable property and that therefore the plaintiffs do not have superior claim of pre-emption on the grounds alleged by them."
15. The learned Additional District Judge started the discussion on issue No. 5-A with the significant observation that "the suit property is agricultural land........ The suit land is situated in Mauza Hajrawanwala which is a separate and distinct revenue estate in tehsil and district Sheikhupura ... . . .. The suit land is assessed to land revenue. It is agricultural land. It has distinct khasra numbers.
The extract of khasra girdawari (Ex.P.8) evidences that it was under plough on the date of sale and remained so for some time even afterwards." He then referred to the provisions of Section 5 of the Punjab Pre-emption Act and observed that "the test of a land being an 'agricultural land' under the Punjab Pre-emption Act is the use to which the land is put at the time of sale. It is not a necessary implication that a certain land is not agricultural merely because at the time of sale it bore no crops. In the case before us, the suit land was agricultural land situated in Mauza Hanjrawanwala, which was being used as such on the date of its sale." In this behalf, he again referred to the entries of Khasraeirdawri. Which according to him, showed that "the land in question was under plough,' even after the sale was sought to be pre-empted through suit. "Dealing with the evidence of Muhammad Jameel vendor, namely, that there existed a boundary wall around the land and that a small house stood on it, the learned Additional District Judge referred to the sale deeds and observed that "there is no mention of any boundary wall around the suit land or any katcha or pacca house built on it. Had there existed any sort of structure on the suit land, then, this fact must have found a mention in the sale deed Ex.D.2". The parties to a transaction, the learned Additional District Judge went on to say, "always take care to make a mention of description of the property, regarding which transaction is made. They never leave such ambiguities in the instrument which instrument may form evidence of the transaction. "The sale deed Exh.D2, so observed the learned Additional District Judge, showed that "there was nothing of the sort of a structure in or around the suit land. "The statement of the vendor, so held the learned Additional District Judge, could not be believed. The learned Additional District Judge proceeded to say that "the defendant-vendees have pleaded, throughout, that the suit land was agricultural land and it had throughout been under cultivation and there was no transformation in ft or a change in its nature". The expression "defendant- vendees" in this observations could well be the result of a typegraphical error but this impression is immediately dispelled by the observations following this observation which deals with the testimony of Mr.Muhammad Siddique Bhatti, Advocate. This witness, so remarked the learned Additional District Judge, "admits that on one side of the suit land there are cultivated fields".
16. Concerning the fact that the land might have been purchased for some sort of construction on it, or its situation on the Lahore-Sheikhupura road, the learned Additional District Judge said: "But that intention of the vendee cannot bind the pre-emptor nor can it make the suit land to suffer a change from agricultural land to urban immovable property. The nearness of Lahore- Sheikhupura road also does not alter the nature of the suit land. Roads dissect even agricultural lands. Roads connect towns and villages. A road docs not by itself change the nature of lands in its vicinity from one type to another. The fact that Sheikhupura city is electrified does not make any difference to the occupants of village Hanjranwala or of the suit land".
Thus, in the view of the learned Additional District Judge, the trial Judge had "through erroneous reasoning mis-understood and misjudged the real character of the disputed land". In his view, the land wa- agricultural land and had not "undergone any sort of change".
17. Learned counsel for the vcndec-defcndanK appellants In m, maintained that to the findings recorded by the learned Additional Dan iel Judge the principles enunciated in Madan Gopal'? Case apply; that in reaching the conclusion that he did, the learned Additional District'Judgehad omitted to notice certain material pieces of evidence and also misread the evidence. In this connection, he pointed out that map (Exh.D5) which showed the situation of the land and highlighted its nature by indicating the surrounding buildings was completely ignored; that instead of reading the evidence of Mr.Muhammad Siddique Bhatti,Advocate, an independent and disinterested witness, as a whole, the learned Additional District Judge relied upon what he described an admission, namely, that on one side of the suit land, there were cultivated fields, and the entire remaining evidence was ignored. His evidence, so contended the appellants' counsel, had a material bearing on the nature of the land, for he himself owned a factory in the same locality and had no reason to perjure himself for the vendee-defendants. Learned counsel for the appellants was also of the view that the learned Additional District Judge had approached the question of the nature of the property with a preconceived notion that the land was agricultural land. According to him, the learned Additional District Judge also misread the entries of Khasra Girdawries, for there was nothing to show that the land at the date of the sale was "under plough".
18. The expression "agricultural land" as used in the Punjab Preemption Act, 1913, has the same meaning as the expression "land" has in the Punjab Alienation of Land Act, 1900; in the latter Act, "land" means land: "Which is not occupied as the site of any building in a town or village and is occupied or left for agricultural purposes or for purposes subservient to agriculture or for pasture, and includes. .
(a) The sites of buildings and other structures on such land".
19. The expression. "village immovable property" and "urban immovable property" are defined therein as follows:
(1) 'village immovable property' shall mean immovable property within the limits of a village, other than agricultural land;
(2) 'urban immovable property' shall mean immovable property within the limits of a town, other than agricultural land. For the purposes of this Act a specified place shall be deemed to be a town
(a) if so declared by the Board of Revenue by notification in the Official Gazette, or (b) if so found by the Courts.
20. In Sheikh Abdul Rehman and another Vs. Khan Sahib Haii Rashid Ahmad and another (AIR 1937 Lahore 182), that eminent Judge Din Muhammad .1 after a survey of the case law on the point deduced the following principles from decided cases, namely, (1) that the mere fact that a rural area is included within the limits of a town is not conclusive as to the urban character of the area in qucstion;(2) that the rural area may lose its pre-existing character and be then absorbed in the urban area; (3) that the inclusion of a rural area within the municipal limits of a town is an important factor to be considered in determining the character of the area in question;(4) that each case is to be judged on its own merits. Applying these tests to the lads of that case, it was held that the property in question had lost its character by reason of the fact that it was included in the municipal limits and the land in the vicinity had been converted into building plots and there were factories in existence quite close to the site in dispute. In Muhammad Saeed Vs. Shah Nawaz and another (1921 LX Indian Cases 580), it was held that "the mere fact that a plot of land is assessed to land revenue would not make it agricultural land, unless it is found that the plot is occupied or let for agricultural purpopes or for purposes subservient to agriculture". In Lai and others Vs. Muhammad Sharif (PLD 1961 (W.P.) Lahore 47) it was held that "what is required in such cases is to have an overall picture and then to assess whether the locality retains its rural character or has been absorbed in the town. The fact that some Lambardars live in the vicinity or the land is assessed to land-revenue are by no means enough circumstances for recording a conclusion that the site forms part of village immovable property".
21. Reading the definitions of the expressions "land", "village immovable property" and "urban immovable property" together, in the light of the guidance to be gained from decided cases, it appears that the essence of the definition of agricultural land is its agricultural or pastural character. In order to determine whether the land is agricultural land, the definition prescribes two tests, one negative that is the property should not be occupied as the site of a building in town or village and the other positive that it should be occupied or let for agricultural purposes or for purposes subservient to character or for pasture. Thus, if a land is occupied as the site of any building, the Court must approach the matter by asking itself objectively:
(i) whether the locality where it is situate is a town or village; and
(ii) whether it is occupied or let for agricultural purposes.If the answer to the first question be in the affirmative, then depending upon its situation in a town or village, it is either urban or village immovable property; it is not agricultural land. But if it be land occupied or let for agricultural purposes, then the buildings on it are also agricultural land. If the land satisfies the test that it is a site of a building in a town or village, then it can not be agricultural land and it appears to follow logically that in that case the second question would not arise. There may be difficulty in drawing the line between the two cases, but a judge of fact should be able to resolve the difficulty. As Lord Simonds said in (1954) A.C.429,445: "For though I am not as a rule impressed by an argument about the difficulty of drawing the line since I remember the answer of a great Judge, that, though he know not when day ended and night began, he knew that mid-day was day and mid-night was night".
22. There are many big bungalows and residential houses in the big cities such as Lahore and Faisalabad which have gardens and vacant lands attached to them; in those lands, sometimes crops arc sown; but can it be reasonably predicted that such lands or gardens should be regarded as things apart from the bungalows or residential houses of which they form part. Even in some residential localities on the Mall, Lahore, there are houses in which vacant lands attached to them are some-times used for crop sowing. Yet, they arc occupied as the sites of the buildings to which they are attached, as much as the site actually under the building.
23. The starting point of the discussion in such cases, in my view, must be the sale deed in question.
In the sale deed relating to khasra No.747, the land was described as follows: North = Khasra No.1110 of the vendor;South = Lahore-Sargodha Road;East = Land of Rehmat; andWest = a bungalow belonging to WAPDA.Deed relating to khasra No.1110/748, the land was describedEast = sem nali;West = a bungalow;North = khasra No.747 owned by the vendor; andSouth = Lahore-Sargodha Road.Follows: In both the sale deeds, it was expressly said that the land was being sold for sakni purposes.
24. It appears that sometime after the sale, the locality, where the land in suit is situated, had been included within the limits of Sheikhupura Municipality.
25. Having considered the findings of the learned Courts below in the light of the parties' evidence and the contentions raised before me, I am of the view that the findings recorded by the learned Civil Judge were fully in accord with the proved and admitted facts of the case. The land in suit is situated right on the Sheikhupura-Lahore Road. That sometime after the sale, the land was included within the mucnicipal limits of Sheikhupura City goes a long way to show that the entire locality, in which the land in suit is situated, was fast assuming the character of urban immovable property. In this lies the significance of the fact that the parties to the sale transaction had treated it as urban immovable property and the land was sold for sakni purposes. It is common knowledge that when a land is sold for sakni purposes, the parties are conscious that it is of more value than agricultural land. That the property was described as sakni in the sale deeds shows that both the parties were agreed upon that important fact. The learned Additional District Judge was, therefore, wrong in his observation that "the intention of the vendee cannot bind the pre-emptor", for the deed expressed the intention of both the parties and not the intention of the vendees only. The vendor said that at the date of the sale, there stood some construction on the land; that construction comprised a boundary wall and a residential room. The vendor had no reason, at least none was shown, to perjure himself for the vendee-defendants. And if there was no reason to disbelieve him, I am unable to see how the fact that the boundary wall and the residential kotha were not mentioned in the sale deed would justify the rejection of his testimony. The evidence of Muhammad Siddique Bhatti, Advocate, was, in my view, wholly invulnaragle to any criticism.
According to the learned Civil Judge, he was a completely independent and disinterested witness.
He was fully qualified to depose to the facts testified by him for he owned a factory is the neighbourhood of the land in dispute. The learned Additional District Judge had not, as he should have, read his evidence as a whole and should not have merely caught at one sentence in his evidence and reading it out of its context used it as an admission, namely, that on one side of the suit land, there were cultivate fields. It will bear repetition to refer to his testimony again; it was that the land in suit had been lying vacant and had not been cultivated since 1960; that it had a bungalow and office of the PWD on the one side, a rice mills in front, and a road on the other side.
His own factory, he added, was contiguous to the land in dispute. In cross-examination, he said that the total area of his factory was 6 or 7 killas and a part of it was under cultivation but that was not, in my view, in any way, on admission of the fact that the land in suit or for that matter the land under cultivation which was part of his factory, was character of a piece of land is urban immovable property, then it matter little that a part of it has a garden or has sometimes been used for crop-sowing. In the circumstances, it made little difference that the land was part of the revenue estate Hajranwala and was assessed to land revenue. The entries of the khasra girdawri (Ex.P.8), if I may say so with respect, were also not correctly read by the learned Additional District Judge. The khasra girdawri relates to the period from 18.10.1969 to 21.3.1974; it shows that before kharif 1969, both khasra Nos. 10/1 and 11 were vacant. In kharif 1972, khasra No.lO/1 was shown to have been cultivated. But in view of what has been said above, once the land had changed its character from agricultural land to urban immovable property, the fact that a part of it was cuiii 'ated in kharif 1972 would not change that character. I am, therefore, of the vi w that the learned Additional District Judge was wrong in reversing the learned Civil Judge and that the learned Civil Judge had rightly found that the locality where the land in suit is situate was a suburb of the town of Sheikhupura. This finding of the learned Civil Judge was fully borne out by the evidence. The locality had buildings and factories around it and modern facilities of electricity, road and nearness of a bus stand fully qualified this locality to be characterised as an extension of the Sheikhupura town.26. I, therefore, hold that the land in suit was not argicultural land because it was occupied, at the date of the sale, as the site of a building in a town, b si her words, it was urban immovable property.27. For these reasons, 1 would also accept RSA Nos.203 and 204 of 1977, set aside the judgments and decrees of the learned Additional district Judge and dismiss the suits of the plaintiffs, Abdul Aziz and Abdul Rehman, for it was not their case that a custom of pre-emption existed in the locality. The parlies are, however, left to bear their own costs.