MUHAMMAD AFZAL LONE, J.---This appeal through leave to appeal, by a vendee, has arisen out of a suit filed against him by the respondent to pre-empt the sale of the land measuring 1 Kanal 18-1/3 Marlas, situate in Village Behiam Khan Killi, Tchsil and District Mardan. This sale is evidenced by a registered deed dated 20-3-1965. The appellant resisted the suit on the plea that the land having been purchased for construction of house was exempt from pre-emptibility. Obviously, the suit was sought to be defeated, on the rectitude of section 5(c) of the N: W.F.P. Pre-emption Act, 1950.
2. It is discernible from the record that in the first instance the trial Court under its judgment dated 13-4-1907, upheld the appellant's plea and dismissed the suit, but with this dismissal the First Appellate Court did not agree and vide judgment dated 11-10-1969 remanded the case to the trial Court for trial de novo. The reason for the remand was that the appellant's Attorney in his statement made an admission that the appellant had purchased some other land in the same village and to this issue the trial Court in granting the exemption did not advert. Upon re-hearing, the trial Court decreed the suit on 25-5-1970. The appellant then preferred an appeal, and the First Appellate Court once against remanded the case to the trial Court. The latter in Postremand proceedings passed decree in favour of the respondent, and held that the appellant failed to establish that he owned land in the village less than one Kanal. The judgment is dated 4-9-1972.
The learned District Judge affirmed the decree in favour of the respondent, dismissed the appellant's first appeal by judgment dated 23-1-1980 and maintained that requirement of section 5(c) was not proved because the appellant owned sufficient landed property in the village.
3. The appellant then went in revision. The High Court called for a report from the trial Court on the point whether he was owner in the village before the sale in dispute. Such a report was submitted to the High Court; and its operative part runs as under:- "As it has been observed earlier and also is clear that by this suit saledeed dated 20-3-1965 has been pre-empted. After remand of case, Patwari Halqa filed Fard Jamiabandi for the year 1960-61 as Exh.P. W.l /1.
Perusal of this document shows that defendant purchased land through Mutations Nos.605, 608 and 609 attested on 31-7-1963 and 17-5-19X)3. These transactions by defendant were made prior to the impugned one. It means that vendee owned sufficient land in village at the time he purchased land subject-matter of this suit. Defendant appeared as DW.3 and stated that land purchased by him prior to impugned transaction is no more his ownership because the same has been transferred in favour of other persons as a result of pre-emption suits. To prove this fact defendant filed copy of Mutation No.980 dated 17-6-1980 and No.997 dated 26-3-1981 as Exhs.DW.1/1 and 1/2."
On perusal of this report, the High Court maintained: "The report called for from the trial Court dated 14-9-1986 reveals that at the time of the purchase of suit land the vendee-petitioner owned 53 Kanals 18 Marlas of land in the village. As such he cannot successfully claim exemption under section 5(c) of the Pre-emption Act.., and recorded a finding that burden to establish that he was entitled to exemption lay, on the appellant, which he failed to discharge.
4. In the leave granting order it has been observed: " the question involved in this case which needs consideration is that agricultural land not suitable for construction of residential A house can disentitle him to claim ' exemption under section 5(c) of the N: W.F.P. Pre-emption Act, and moreso when the petitioner was held owner of 53 Kanals 18 Marlas of land who has been divested of the said area on the basis of pre-emption suit filed by the respondent."
5. For proper resolution of the controversy falling for adjudication before us, section 5 in so far as relevant for the purpose of this appeal is reproduced below:- "5. Property exempted from pre-emption: -No right of pre--emption shall exist in respect of the sale of, or the foreclosure of a right to redeem: (a)xxxxxxxx (b)xxxxxxxx (c)agricultural land or village immovable property, consisting of an area measuring not more than two Kanals purchased by a resident of the village in which such land is situated, where he neither owns a house nor a vacant site measuring more than one Kanal; for constructing a house for his own occupation.
(d)xxxxxxxx."
According to the language of clause (c) ibid in order to be eligible for exemption a vendee must establish the following conditions that:- (a)he is resident of the village in which the land in dispute is situated; (b)the area of the land purchased by him is not more than two Kanals; (c)it is required by him for construction of a house for his own occupation; and (d)he does not own a house or a vacant site in the same village, measuring more than one Kanal.
6. We have gone through the trial Court's file and are of the view that the first three conditions are sufficiently proved by material on the record. There is enough evidence showing that the appellant is resident of the village Behram Khan Killi from his forefathers; he does not own any house there and purchased the land for construction of a house. During the arguments it has been pointed out to us that the appellant has already constructed a house over this site. It remains to be considered whether the appellant succeeded in fulfilling the fourth condition as well. The impugned judgment, demostrates that the High Court refused to grant the exemption to the appellant on the ground that before the purchase of the land in dispute, he was owner of the land in the village acquired by him under the three mutations referred to in the report of the trial Court. On examination of the copies of the Revenue Record appended to the trial Court's file we find that the area covered by the three mutations measures 50 Kanals, 8 Marlas, which is wholly agricultural land. A question arises whether the ownership of agricultural land measuring more than one Kanal, on the date of the purchase of the suit land, could disentitle the appellant from claiming the exemption. Our answer is in the negative. The reason is that upon the language of section 5(c) only ownership of "vacant site" measuring more than 1 Kanat is a disqualification for grant of exemption. The expression "vacant site" is not synonymous with agricultural land. The legislature itself has used two nomenclatures in section 5(c), namely, "agricultural land" and "vacant site". It is to be remembered that legislature is to be presumed to have acted with precision and would apply the same words to describe the same thing. When in the same section two analogous words C susceptible of different connotations, in relation to the same subject are used, unless a different intention is spelt out from the language of the statute, the Court can legitimately presume that these are intended to be employed to convey different meanings. It seems to us that by the expression "vacant site as used in section 5(c), is meant the land other than agricultural land, which may include a site in the village Abadi and waste land not, utilized for any specific purpose lying vacant and capable for utilization for construction purpose. Evidently the High Court has not adverted to this aspect of the case much less to analyse the language of clause (c), and apparently considered the "vacant site" as the same thing as agricultural land. This, in our opinion, is palpably wrong. In this view of the matter, the fact that the appellant owned sufficient agricultural land in the village, before the purchase of the land in question, of which he was deprived by the respondent, through a decree in a pre-emption suit, becomes immaterial. We feel that the appellant was successful in bringing his case within the ambit of section 5(c) and thus, was entitled to the exemption envisaged thereby.
This appeal is, therefore, accepted, the judgment of the High Court set aside and that of the trial Court dated 13-4-1967, dismissing the respondent's suit, restored. As the question of interpretation of section 5(c) is involved on which there is not much reported case-law, the parties arc left to bear their own costs.