' NAZIR AHMED BHATTI, J.--Haji Abdul Fatah, respondent herein, had filed a suit in the Court of Civil Judge, Peshawar, against Haji Abdul Sattar appellant for possession by pre-emption of land measuring 2 kanals and 2 marlas purchased by the appellant by two sale-deeds registered on 7- 8-1971 and 9-8-1977. He had also mentioned in the plaint that the property purchased by the appellant was in fact land but it had been fictitiously shown as a serai in order to defeat his pre- emptive right. The appellant, in his written statement, had inter alia taken up the plea that the suit was bad for partial pre-emption on the ground that the property purchased by him was in fact a serai including abadi, boundary walls, land under it and right of way and other rights and not agricultural land only whereas the respondent had filed the pre-emption suit with regard to land only. The appellant had also taken up the plea that since the property in dispute was a serai, it was exempt from pre-emtpion. From the pleadings of the parties, the learned trial Judge framed the following issues:--
(1) Whether the plaintiff has a cause of action?
(2) Whether the suit property is exempted from pre-emption?
(3) Whether the suit is not maintainable in the present form?
(4) Whether the suit is liable to dismissal for partial pre-emption?
(5) Whether the property in suit is serai and as such not pre-emptible?
(6) 'Whether the suit is correctly valued for the purposes of court-fee and jurisdiction?
(7) Whether the plaintiff is entitled to pre-empt the sale being co-sharer in the joint khata and owner of contiguous land?
(8) Whether no notice of sale was required to be given to the plaintiff prior to the sale in question?
(9) Whether the price mentioned in the sale-deed was paid in good faith and if it is not so, what is the market value of the suit property?
(10) Whether the plaintiff is entitled to the decree prayed for?
(11) Relief.
2. The parties produced evidence pro and contra the issues. The learned trial Judge also appointed a local commissioner to find out the nature of the property at the spot as also to determine its market value. The local commissioner so appointed, made a report that at the spot the property in dispute consisted of an open plot and a quarter inhabited by a tenant and there was a main gate and 9/10 old rooms were situated inside the main gate and that a varandah with a seven feet width was also in existence. The local commissioner further reported that there were 4/5 other rooms as well, all the rooms were unoccupied but in the possession of the appellant and were constructed about 20/22 years ago. The commissioner also reported that the appellant had also constructed 5 pacca rooms alongwith a varandah, the floor of which was made of chips and this construction appeared to be about two years old.
3. The learned trial Judge decided issues 4 and 5 against the appellant and decreed the suit in favour of the respondent by judgment dated 3-6-1984. The defendant of the suit has challenged the aforesaid judgment and decree by the appeal in hand. The learned counsel for the appellant challenged the findings of the learned trial Judge on issues 4 and 5.
4. It was contended by the learned counsel for the appellant that; firstly, in deciding issue No,4, the learned trial Judge had erroneously taken the definition of land given in the Land Acquistion Act whereas for the purposes of preemption, the N.-W.F.P. Pre-emption Act, 1950, had adopted the definition of land as given in the Punjab Alienation of Land Act, 1900, and by omitting to sue for the abadi and other rights purchased by the appellant the respondent had made his suit defective for partial pre-emption; and secondly,in deciding issue No,5 the property in dispute was erroneously held as agricultural land whereas it was a serial and exempt from pre-emption.
5. For the better appreciation of the arguments of the learned counsel for the appellant, it is expedient to look into the definition of the term "land" as given in the Land Acquisition Act and the term "agricultural land" as given in the Punjab Alienation of Land Act. The term "land" as defined in the Land Acquisition Act, includes benefits to arise out of land, and things attached to the earth.
Whereas the Punjab Alienation of Land Act defines land in its section 2 (3) as follows:-- (2)..................................................................................................................................
(3) the expression "land" means land which is not occupied as the site of any building in a town or village and is occupied or let 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;
(b) a share in the profits of an estate or holding;
(c) any dues or any fixed percentage of the land-revenue payable by an inferior landowner to a superior landowner;
(d) a right to receive rent;
(e) any right to water enjoyed by the owner or occupier of land as such;
(f) any right of occupancy;
(g) all trees standing on such land".
6. The comparison of the aforesaid definitions would clearly show that the term "land" has not been defined in the Land Acquisition Act, but it is shown to include the other structures etc., whereas the definition of land as given in the Punjab Alienation of Land Act is very exhaustive. The N.-W.F.P. Pre- emption Act has adopted the definition of the term "land" for the purposes of agricultural land as given in the Punjab Alienation of Land Act. When the term "agricultural land" as mentioned in the N.-W.F.P. Pre-emption Act, was to have the definition of the term "land" as given in the Punjab Alienation of Land Act, then the learned trial Judge could not legally import the definition of the term "land" as given in the Land Acquisition Act. The learned trial Judge committed an illegality in this respect. He should have actually taken into consideration the definition of the term "land" as given in the Punjab Alienation of Land Act for the purposes of agricultural land as given in the N.- W.F.P. Pre-emption Act.
7. The evidence produced by the appellant had clearly proved that the I property purchased by him was not agricultural land. It was situtated inside a boundary wall. There were 14/15 quarters in existence on this land when he had purchased it. He also constructed 4/5 new quarters thereon after purchase. The local commissioner also confirmed the aforesaid constructions and no evidence at all had come on the record to show that the property in dispute was being used for the purpose of agriculture when it was purchased by the appellant. The existence of 9/10 quarters, which were constructed about 20/22 years ago, as reported by the local commissioner, showed that the property in dispute was not being used for the purposes of agriculture since a very long time. The construction of quarters thereupon also proved that it was being used as a sort of serai for the purposes of termporary residence.
8. Although no evidence had come on the record that the property in dispute was still being used as a serai but the existence of quarters thereon and the construction of new quarters by the appellant showed that it was meant to be a serai and it was neither fit for the purposes of agriculture nor it was being used since a long time for that purpose and it was no longer agricultural land.
9. The learned counsel for the appellant has also relied upon the cases of The Firm Gokal Chand Jagan Nath of Sialkot. v. The Collector, Income Tax, Sialkot AIR 1924 Lah. 662, Saleh Muhammad v.
Mst. Pairi and others AIR 1936 Lah. 202 and Sheikh Abdur Rehman and another v. Khan Sahib Haji Rashid Ahmad and another AIR 1937 Lah. 182 to elucidate his point. All these aforesaid judgments show that a land situate in a village which is not being used for the purposes of agriculture but had been constructed upon could not be considered as agricultural land. On the contrary, the learned counsel for the respondent has contended that the property was never used as a serai and the mere fact that it was mentioned as serai in the sale-deeds did not make the suit property as a serai. In this respect he also brought to our notice the case of Haji Mian Muhammad and another v.
Ghulam Mustafa PLD 1973 Supreme Court 394 wherein it was held that mere description of the property in the previous litigation would not by itself bring it within the exemption contained in section 5 (a) of the N.-W.F.P. Pre-emption Act, if in fact the property was not a seria at the time of its sale to the vendee.
10. We have very minutely considered the contentions raised by both the parties and have closely perused the evidence produced by them. From the perusal of the sale-deeds and the report of the local commissioner it had been proved beyond any doubt, whatsoever, that the property in dispute was neither agricultural land nor it was being used for the purposes of agriculture when it was sold.
Actually it had been constructed upon more than twenty-five years ago for the purposes of a serai and for all intents and pruposes, it was a serai when it was purchased by the appellant. Since a serai is exempt from pre-emption under section 5(a) of the N.-W.F.P. Pre-emption Act, 1950, the suit of the respondent was barred. The respondent could not pre-empt the property in dispute in view of the bar contained in the N.-W.F.P. Pre-emtpion Act and his suit was liable to dismissal.
11. It was also proved from the pleadings of the appellant and the sale-deeds that the vendee had purchased the land, the abadi built upon it and the boundary wall etc. But the respondent had only pre-empted the land leaving aside the abadi etc. As such the suit also suffered from the defect of partial pre-emption.
12. We will, therefore, accept this appeal, set aside the findings of the learned trial Judge on issues 4 and 5 and will decide both the aforesaid issues against the plaintiff-respondent and dismiss his