' On 21-10-1979, Imam Din respondent filed suit for possession by preemption of land measuring 32 Kanals 12 Marlas situated in Narowal against Munawar Ali defendant-appellant on the ground of being collateral of vendor and co-owner in the estate, in the Court of Civil Judge, Narowal, The suit was resisted whereon 8 issues were framed. The parties led evidence. The trial Court decreed the suit on 26-7-1983. The appeal filed by the defendant-appellant against this judgment and decree was dismissed by the learned District Judge, Sialkot, on 27-2-1989. Hence this second appeal.
2. Before me the learned counsel for the appellant has challenged the findings of the Courts below on following issues:--
(1) Whether the suit is incorrectly valued for the purposes of court-fee, and if so, what is the correct valuation ? OPP.
(1-A) Whether the property in dispute is situated within Municipal limits and is surrounded from all sides by urban population and urban characteristics like availability of electricity, water supply exist, and the land in dispute, therefore, does not have agricultural nature, and is urban property and not pre-emptible ? OPD.
(3) Whether the plaintiff has superior right of pre-emption ? OPP.
3. The learned counsel for the appellant submitted that the suit property was/is urban immovable property situated in Narowal, which was declared a town vide a notification on 10th November, 1908; suit property consists of four scattered plots within the municipal limits of Narowal; that the suit property is surrounded by roads, buildings, constructed by private persons, the connected roads, are electrified; the Courts premises are at a distance of about 6 furlongs from the suit property and as such the suit property was/is not a village immovable property as such the superior right of pre-emption could not be claimed in the terms of section 15; that under Punjab Immovable Property Tax Act, 1958, Narowal town has been declared urban area and the suit property is being assessed to property tax; that the Courts below have not considered the evidence of Abdul Hamid D.W.3, Khadim Hussain D.W.4 and Riaz Ahmad D.W.5 and that the findings of the Courts below suffer from misreading and non-reading of evidence. Reliance has been placed on Lal and others v. Muhammad Sharif (PLD 1961 (W.P.) Lah. 47); Nasir Abbas v. Manzoor Haider Shah (PLD 1981 SC 568 and Mian Gul Shah and others v.Syed Farman Shah and others (1985 SCMR 1789). The learned counsel further argued that since one of the vendors, namely Mst.
Ramzan Bibi was not related to the respondents and the defendant-appellant had become co- sharer in the estate on the basis of a gift before the institution of the suit for possession by pre- emption, therefore, the plaintiff/respondent has no superior right of pre-emption; that since the suit land was an urban immovable property, therefore, the court-fee should have been paid on its market value and not on 15 times of the net profits as paid by the plaintiff/respondent, and that the application filed by the appellant before the first appellate Court for permission to produce additional evidence (documents), the genuineness whereof was not open to doubt, was rejected by the appellate Court without cogent reasons.
4. On the other hand, the learned counsel for the respondent has supported the judgments and decrees passed by the Courts below.
5. I have considered the submissions made by the learned counsel for the parties with care. From the aforementioned state of affairs, it is very much obvious that the crucial question for consideration is as to whether the suit land was a village immovable property within the meaning of section 15 of the Preemption Act, 1913 or it was an urban immovable property within the meaning of section 16 of the Punjab Pre-emption Act. The fate of Issues Nos.1 and 1-A mostly depends upon the answer to this question. The Courts below have concurrently found the suit land to be an agricultural land and village immovable property and not urban immovable property. The Courts below have applied conscious mind to the relevant material evidence on record and have given sound and cogent reasons in support of the conclusions arrived at by them. The sale was effected on 23-11-1978. Copy of Jamabandi for the year 1973-74 Ex.P.10 and Khasra Girdawari P.18 shows that the suit land was an agricultural land and village immovable property. Most of the Khasra numbers of the suit land were under cultivation. The registered sale deed does not show that the suit property was an urban immovable property or was sold for residential purposes. There is no evidence on record to show that at the time of sale i.e, in November, 1978, the suit land was no longer part of village immovable property or had become a suburb of the town (Narowal).
Sakhawat Ali, attorney of the appellant appearing as DW 7 has clearly stated that:- {{URDU TEXT}} ' Abdul Hamid DW 3, Khadim Hussain DW 4 and Riaz Ahmad DW 5 have told the nature of the suit land and vicinity around it as it existed at the time of the recording their evidence in the year 1983.
They have not given the picture of the suit land as it was in the year 1978. Be that as it may, the appellant is bound by the statement made by his attorney Salamat Ali DW 7. I do not see any reason to disbelieve him. The statement made by him is in consonance with the Revenue record.
The submissions made by the learned counsel do not carry any weight. No application for the production of the documents sought to be produced at appellate stage was moved before the trial Court. It was at a very late stage that an application for permission to produce some documents was made before the appellate Court. After having considered the application in the light of the circumstances of this case has rejected the same for good reasons. The order rejecting prayer for production of additional evidence does not suffer from legal infirmity. The appellant should have been vigilant at the time of trial and cannot be allowed to fill in the lacuna in his evidence at the stage of appeal, without sufficient cause which I do not see. Since I am also of the view that the suit land was not an urban immovable property within the meaning of section 16 of the Pre-emption Act, 1913, therefore, no exception can be taken to the findings of the Courts below on issues Nos.1 and 1-A.
6. As for Issue No,3 relating to the superior right of pre-emption, I find that there are reasons to doubt the genuineness of the alleged gift of the land situated in the estate in favour of the defendant-appellant. In his first written statement, he did not disclose the transaction of gift in his favour. The gift is not through any registered deed. Therefore, it cannot be said with certainty as to when the land was really transferred by way of gift. It seems to me that the plea of the plaintiff/appellant having become co-sharer in the estate through gift of land in his favour is false and afterthought. If for the sake of arguments, it is assumed that the plaintiff/respondent was not collateral of one of the vendors, Mst. Ramzan Bibi, it will not take the case of the defendant/appellant any further because plaintiff/respondent was co-owner in the estate at the time of sale and the defendant/appellant has not been proved to be a co-sharer in the estate at that time or before the filing of the pre-emption suit by plaintiff/respondent. The case cited by the learned counsel do not apply to the facts of this case. The judgments of the Courts below do not suffer from any illegality or material irregularity.
7. Pursuant to the above discussion, the appeal is dismissed leaving the parties to bear their own costs.