MIAN NAZIR AKHTAR, J.-This Regular Second Appeal arises out of a pre-emption suit filed by the respondents on 11.7.1977 in the Court of the Civil Judge, Hafizabad, in respect of sale of the land measuring 49 kanals 9 marlas situated in mauza Gujranwala tehsil Hafizabad district Gujranwala.
The land was sold by Yasin etc. In favour of Taj Begum, appellant, through a registered sale deed dated 10.7.1976.
2. The right of pre-emption was claimed by the pre-emptor on the ground of being owners in the village patti Taraf. The trial court decreed the suit, vide the judgment and decree dated 7.10.1979.
The appeal filed by the appellant was dismissed by the learned Additional District Judge, Gujranwala, vide the judgment and decree dated 27.7.1981.
3. The learned counsel for the appellant urged that the disputed land was situated in Taraf Tararan of village Gujranwala tehsil Hafizabad. The pre- emptor/respondents also owned land in village Taraf Tararan of Gujranwala, while the vendee/appellant owned land in Taraf Bawaray of the same village. The learned counsel for the appellant urged that both the parties owned land in the same revenue estate known as Gujranwala and enjoyed equal status in the eye of law. According to the learned counsel, mere mention of different Taraf was not sufficient to show that these were to well recognised and independent revenue estates. He further submitted that the plaintiffs/respondents never made a statement in the Court to the effect that the to Tarafs were separate sub divisions.
He placed reliance on the following cases:- 1) Gul Muhammad and others Vs Sadar-ud-Din and others (PLD 1951 Lahore 437); 2) Muhammad Anwar vs Malik Fazal Ellahi (PLJ 1979 Lahore 396); 3) Wazir Din Vs Hidayat and 2 others (1973 SCMR 254); 4) Ram Partap Vs Kishen Singh and another (AIR 1937 Lahore 32); 5) Raja Painda Khan and others Vs Sardar Kahan Singh and others (AIR 1937 Lahore 703); 6) Waryam Singh and another versus Hamam Singh and another (AIR 1919 Lahore 292 (1); and 7) Yaqoob Ali Vs Ch. Mohammad Sultan (NLR 1981 SCJ 581).
The learned counsel for the respondents urged that Taraf Tararan and Taraf Bawray were to separate sub divisions having separate Lumberdar and that land revenue was also separately assessed in the to Tarafs. He further submitted that the respondents were not given an opportunity to 'produce evidence in rebuttal, although they had filed an application to summon the Patwari, which was rejected by the trial Court on 8.5.1979.
4. Under section 15 (c) secondly, right of pre-emption vests in the owners of the Patti or sub division of the estate within the limits of which such land or property is situate. Now, the question arises as to whether Taraf/ Tararan or Taraf Bawray are to separate pattis or sub-divisions? The facts brought on the record in the present case are not sufficient to hold that the to tarafs are well recognised sub-divisions for the purposes of the Pre-emption law. The Punjab Pre-emption Act, 1913, does not talk of Tarafs but of patti or sub-division of the estate. Even the word "Patti" by itself does not establish existence of an independent sub-division of the village to which reference has been made in the Punjab Pre-emption Act. A patti may or may not be a sub-division depending on the past history of the village, the homogeneity of the area or of descent. Tarafs or Pattis, which are created for fiscal purposes and not on the basis of homogeneity of area or descent of the proprietors, cannot be treated to be sub divisions of a village within the meaning of section 15 (c) as held in the case of Raja Painda Khan and others Vs Sardar Kahan Singh and others (AIR 1937 Lahore 703). A similar view was expressed in the case of Ram Partap Vs Kishen Singh and another (AIR 1937 Lahore 32). In Ram Partap's case, the question was as to whether patti Gulab Singh and patti Gurmukh Singh were to distinct sub divisions or not. Both the pattis had to separate Lumberdar but the Court did not treat the to pattis to be separate sub-divisions for the purposes of the pre-emption law. It was held as under: - "It is no doubt true that in the settlement papers, the to pattis are mentioned and there are separate lambardars for them. But these facts are by no means conclusive on the. Point. The number of lambardars appointed in a village, or the sub-division thereof, is a matter of administrative convenience, depending on a variety of considerations...... The real question is whether patti Gurmukh Singh and patti Gulab Singh are distinct entities, having nothing in common between them, each having homogeneity of area or descent."
The question as to whether a particular patti or taraf is really an independent subdivision or not is essentially a question of fact which, has to be determined in each case on the basis of the material brought on the record. This view finds support from the judgment in the case of Waryam Singh and another versus Hamam Singh and another (AIR 1919 Lahore 292) (1). In the Division Bench judgement in Gul Muhammad's case, it was emphasized that the mere word "patti" does not establish existence of an independent sub-division of the village. It is only where a Taraf, panna or patti has been proved to be a separate entity in the light of the history of the village, the homogeneity of the area or of descent that a taraf, panna or patti may be called a sub-division within the meaning of clause (c) of section 15 of the Punjab Pre-emption Act, 1913. Again, this would depend upon the evidence brought on the record in each casein the precedent case after considering the relevant material, the court held that patti Daultani was not a distinct-sub-division.
In Muhammad Anwar's case, it was held as under:- "In the absence of such proof of existence of patties or Tarafs having been brought on record a pre-emptor cannot avail of the mere mention of the word patti or Taraf in the record to successfully preempt a sale on the basis of claim as an owner in the taraf or patti."
In Wazir Din's case, the Supreme Court was pleased to hold as under:- "For the purposes of pre-emption within the meaning of section 15 (c) secondly, the mere word "Patti" whether in the record or otherwise does not by itself establish a sub-division of the village."
In Yaqoob Ali's case, the view taken in Wazir Din's case was maintained by the Supreme Court.
5. In the present case no material was brought on the record to show the history of the to tarafs, the homogeneity of the area or descent. The pre-emptor merely tried to take advantage of the fact that the vendee/appellant was owner of land in village Gujranwala Taraf Bawray, while the disputed land was situated in village Gujranwala Taraf Tararan, where the pre- emptor/respondents also owned land. As held in a large number of cases, mere mention of the word Taraf is not sufficient to hold it to be an independent estate or sub-division of an estate for purposes of the pre-emption law. Even the appointment of to Lumberdar in the present case is not conclusive evidence of creation of to independent subdivisions. The step of appointing to Lumberdar might have been taken for administrative convenience. Hence, the to courts have fallen in error in holding that the pre-emptor had a superior right of pre-emption, being owners of land in Taraf tararan in which the disputed land was situated. The pre-emptor as well as the vendee/appellant in the present case are owners of land in village Gujranwala and hold equal status. Therefore, the pre-emptor/respondents have failed to establish that they possess superior right of pre-emption.
6. For the foregoing reasons, I allow this appeal, set aside the judgments and decrees of the Courts below and dismiss the suit filed by the respondents. The parties are left to bear their won costs.