1. ' Civil Revision by the plaintiff arises out of a pre-emption suit. It was decreed in his favour by the trial Court on 29-6-1981 but in the appeal preferred by the vendees-defendants, decree of the trial Court was reversed on 10-3-1982 by Additional District Judge, Sheikhupura on the sole ground that the sale of the land in dispute was Not pre-emptible.
2. ' Relevant facts giving rise to the Civil Revision petition briefly stated are:-By a deed of sale registered on 14-4-1976, Sardar Ali sold 3 marlas, a half share out of 6 marlas comprised in Killa No,23/5, Square No,70 of Khatauni No, 404 in Khata No153, situate at mauza Sharqpur Khurd of Thesil Ferozewala in District Sheikhupura to Imam Ali, Ramzan and Muhammad Akram ss/o Muhammad Ibrahim for a sum of Rs,10,000.
3. ' Muhammad Zafar Iqbal petitioner claimed pre-emption in respect of the above sale. Superior right of pre-emption was asserted on the basis of being an owner of the estate. Price paid for the land was denied and it was alleged that it was alienated for Rs,4,000 only and a false show of payment of Rs,10,000 was made to ward off pre-emption. Pre-emption suit was instituted on 7-3- 1977 in the Court of Civil Judge of Ferozewala.
4. ' Vendecs contested the suit. In the written statement filed by them, it was submitted that sale of the land in dispute was Not pre-emptible because the lands were divided and sold in plots including the land in dispute and after purchasing it, the vendees had started constructing the shop on it; that the plaint was deficiently assessed for purposes of court-fee and consequently, it was insufficiently stamped; that the pre-emption suit was barred by limitation; that the sale was in the knowledge of the plaintiff and thus he had No right of pre-emption; that after purchasing the land-in-dispute, the vendees had commenced construction of a shop on it and filled earth and therfore, were entitled to reimbursement of the expenses amounting to Rs,4,000 as improvement charges. On merits, Para 1 of the plaint relating to description of the land in dispute and its location in the village was admitted but the plaintiffs superior right of pre-emption was denied by asserting that the defendants were also owners of the estate.
5. ' Necessary issues in the suit were settled on 13-9-1978. Though the preemption suit was tried on as many as eight issues in the trial Court, yet the solitary material issue surviving for determination in the revision petition is about the pre-emptibility of transaction of sale. The trial Court found that it was Not proved that the land-in-dispute had lost its pastoral nature, and, acquired character of Urban immovable property whereas in appeal filed by respondents, a contracy view on the nature of the property prevailed in the lower appellate Court. So the only material question for consideration would be about the nature of the property sold; whether it was agricultural land; village immovable property or urban immovable property.
6. ' In order to establish his case, the plaintiff recorded twice his statement as P.W. 1, once appearing in the affirmative and thereafter in rebuttal after the close of defendants' evidence. Defendants felt content by producing one of them namely Ramzan All as a party-witness. Plaintiff also produced copy of registered sale-deed Exh. P-1, copies of Register Haqdaran Zamin for the year 1970-71, Exhs.
7. P.2, P-3 and defendants produced original registered sale-deed Exh. D-1 and an extract from Register Khasra Grdawari from Kharif 1974 to Rabi 1979 Exh. D-2 in evidence. Exh.P-2 showed that the land measuring 6 Marlas out of which 3 marlas were sold was `Banjar Qadeem', and was situated in Mahal Sharqpur-Khurd of Tehsil Ferozewala. Exh. P-3 indicated plaintiff's ownership of land in mahal Sharqpur Khurd. In the copy of Khasra Girdawari Exh. D-2, the land was recorded as `Banjar Qadeem'. It was seen from the oral evidence consisting of a statement on each side that the land sold was located on metalled road leading to Sheikhupura and around it some houses and shops had been built. There was also a Post-Office nearby. Upon reading of oral evidence with the entries in Revenue record produced by the parties showing that the land was lying fallow coupled with the factor that adjacent to it residential and Non-residential buildings were beirg constructed, the lower appellate Court concluded that "land had developed the character of a "Town". Therefore, it was Not liable to pre-emption under section 15 of the Punjab Preemption Act. It is important to observe that the learned lower appellate Court omitted from its consideration material portions of record and those seen by it were Not properly read and appreciated which led it to reach a faulty conclusion. It is significant to Note that the written statement which was the basic charter of defence submitted by the plaintiff, did Not contain eithe expressly or impliedly the plea that the land in dispute had acquired the status of an urban immovable property and Sharqpur Khurd was either a "Town" declared by the Local Government or Member, Board of Revenue for the purposes of Punjab Pre-emption Act or was found "Town" by the Courts in the past or the trial Court in which the pre-emption suit proceeded for trial should it hold so. Further, in course of the trial of the pre-emption suit; defendants did Not claim an issue on urban character of the land and its consequent immunity from pre-emption and in the issues framed, issue on the point was conspicuous by its absence. Also, there was Not a shred of material to suggest that mahal Sharqpur Khurd in which the land in dispute was situated had the necessary indicia and characteristics of a "Town" and the "land", an urban immovable property. There was yet aNother significant circumstance and that was that No such plea was taken in the memorandum of first appeal filed in the lower appellate Court. Even then, the lower appellate Court took upon itself to decide and hold that the land in dispute was urban immovable property. It was Not controverted, rather it was admitted in the written statement that Sharqpur Khurd was a 'Village'. Merely, because of the location of the land aside the metalled road leading to Sheikhupura and construction of some houses and shops adjacent to it and presence of a grain market, a Post Office, a School and a Veterinary Hospital in absence of other material would hardly prove that the land had acquired urban character only to be pre-empted under section 16 of the Punjab Pre-emption Act, 1913. From the entries in Revenue records, it appears that from the year 1970-71 to Rabi 1979, the land was recorded as `Banjar Qadeem'. There must be No doubt, that before the land came to be recorded as `Banjar Qadeem' in the Jamabandi for the year 1970-71 Exht. P-2, it must have laid fallow for some time in the past. Is that circumstance alone sufficient to hold that it was urban immovable property? In my opinion, it was Not so. All around, and villages are No exception, developments are taking place. Schools, Hospitals, Post Offices, Roads and other basic amenities which heretofore were denied to the villagers which contained bulk of the population of the country are Now falling in their way. The criterion of a 'village' was essentially its agricultural character, whereas, in the "Town" this important characteristic was missing. On record, necessary evidence i,e. The population of Sharqpur Khurd, its composition, avocations, the location vis-a-vis nearness to the City/town was missing. Therefore, if the land in dispute was Not actually cultivated for quite some time in the past and lay fallow and was sold as a plot for purposes of construction on it, then, if it could Not be classified agricultural land, it could be safely held to be a piece of "village immovable property" and would Not turn the tables in favour of the respondents. There is consensus of judicial opinion that in determining the character of the property, the time to be looked to is the date of sale and the purpose for which it was purchased was immaterial. As I have already said, Sharqpur was still recorded a 'village' in Revenue papers. Neither, the Local Government Nor the Board of Revenue had Notified it as a "Town". Also, till the date of impugned judgment given in appeal, it was Not found a "Town" by the Courts. However, absence of a declaration by the Courts in the past did Not preclude a fresh finding by the Court/Courts on the urban character of the land and the locality being found a "Town". In the process of development, a locality which once possessed the characteristics of a 'village' may adopt urban characteristics or be absorbed in a "Town". Therefore, though the jurisdiction existed in the lower appellate Court to find on urban character of the property, but in presence of existing record, the jurisdiction had Not been exercised correctly and the finding on urban character of the property suffered from a misreading of record and incorrect application of law. No amount of evidence could have been given or looked into in support of a fact or plea which was Not expressly pleaded in the written statement. This was basic Law of pleading which had escaped attention in the lower appellate Court. On the existing records, I am sufficiently convinced that it was Not established that the property had acquired the status of urban immovable property and as such was Not pre-emptible. If it was Not a piece of agricultural land being recorded `Banjar Qadeem' for number of years, it could be safely held to be a piece of village immovable property and was, thus, preemptible under section 15 of Punjab Pre-emption Act. There was No doubt that plaintiff was onwer of estate and had superior right of pre-emption qua the respondents. Sale price was already admitted. No other point was agitated. I would, accordingly, allow Civil Revision and set aside the impugned judgment and decree of learned Additional District Judge dated 10-3-1982, and, restore those of the learned trial Court decreeing the pre-emption in favour of plaintiff-petitioner with No order as to costs in this Court.
8. Records be returned.