' AJMAL MIAN, J.--By this common judgment, we intend to dispose of the above two appeals which are directed against the judgments dated 25-4-1990 passed by a learned Single Judge of the Lahore High Court in R.S.A. Nos. 137 of 1988 and 136 of 1988, respectively, filed by the appellants against the judgment dated 28-6-1988 of the learned Additional District Judge, Muzaffargarh, whereby he set aside the judgments and decrees dated 18-5-1986 of the learned Senior Civil Judge, Muzaffargarh, decreeing the appellants' suits for pre-emption, declining the same and maintaining the above appellate judgments/decrees. Leave to appeal was granted on the ground that leave to appeal had already been granted in Civil Petition No,402-R of 1989 (Muhammad Zaffar v. Ghulam Fatima) to consider the same question as had been urged in the two petitions, from which the present two appeals have arisen.
' The brief facts are that through Mutation No,696, attested on 26-4-1966, Murad Ali and his sister, Mst. Sharifan sold 427 'Canals 17 Marlas of land situated in the revenue estate of Marian, Tehsil Alipur, District Muzaffargarh, to Faqir Muhammad son of Noor Muhammad, Ghulam Rasool, Mohammad Ismail, Muhammad Ibrahim, Wali Muhammad, Muhammad Ramzan and Muhammad Sharif, sons of Karam Elahi, for an ostensible sale price of Rs,70,000 hereinafter referred to as the first transaction, which is the subject-matter of Civil Appeal No, 1544 of 1990.
' It further seems that Murad Ali by Mutation No, 697, sanctioned on 26-4-1966, sold 279 Kanals 17 Marlas of land situated in the revenue estate of Marian, Tehsil Alipur, District Muzaffargarh, to Faqir son of Noor Muhammad, Ghulam Rasool, Muhammad Ismail, Muhammad Ibrahim, Wali Muhammad, Muhammad Ramzan and Muhammad Sharif sons of Karam Elahi, for an ostensible price of Rs,40,000, hereinafter referred to as the second transaction. It further appears that Muhammad Ismail, the predecessor-in-interest of the present appellants, as an owner of the estate, filed two suits for pre-empting the above two transactions.
' The above suits were resisted by the vendees. Faqir Muhammad, one of the vendees (since deceased), is now represented by his legal representatives i.e, respondents Nos. 1 to 9; whereas, the other remaining vendees have been arrayed as respondents Nos. 10 to 15.
3. The learned Senior Civil Judge, on the basis of pleadings of the parties, framed the following 11 issues:--
(1) Whether the suit is liable to be dismissed as it was instituted in the wrong Court ? OPD.
(2) Whether the suit is time-barred ? OPD
(3) Whether the suit is properly valued for the purposes of court-fee and jurisdiction ? OPD
(4) Whether the plaintiff had not paid the court-fee within the time allowed by the Court. If so, with what effect?0PD.
(5) Whether the plaintiff had not deposited the Zar-e-Panjum within time? OPD
(6) Whether the suit-land is not properly detailed and the suit is liable to be dismissed on account of its being partial pre-emption? OPP
(7) Whether the plaintiff has a superior right of pre-emption qua the vendees ? OPP
(8) Whether the plaintiff had waived his right of pre-emption and is estopped from suing ? OPD
(9) Whether Rs,17,000 were fixed in good faith or actually paid as the price of the suit land ? OPD
(10) What was the market-value of the suit land at the time of sale in dispute ? OPP
(11) Relief.
' In support of the suits, the plaintiffs examined P.W. 1 Ghulam Ghous, Patwari, P.W. 2 Nazir son of Siraj Din, P.W. 3; Rasool Bakhsh and P.W. 4 Ghulam Hussain, and also produced documents Exhs. P/1 to P/11. Whereas, the defendants examined D.W. 1, Syed Unees Akbar, D.W. 2 Wali Muhammad and D.W.
3 Fa7al Muhammad. Faqir Muhammad, one of the purchasers, appeared as D.W.
4. They also produced documents Exhs. D/1 to D/7.
4. The learned Senior Civil Judge, after hearing the parties by his aforesaid judgments, decreed the suits. While recording his finding on Issue No,7, the learned Senior Civil Judge repelled the contention of the learned counsel for the respondents that the appellants were not the owners of the estate, as they had failed to prove that their land was assessed to land revenue for the following reasons:-- "On the basis of these authorities, learned counsel for the defendants, vehemently argued that to succeed on this ground it was necessary for the plaintiff/pre-emptors to show that the land on the basis of which they are claiming the pre-emption was assessed to land revenue. In other words, since in the Khatooni Exh. P-2, land revenue was not mentioned, therefore the plaintiffs/pre- emptors cannot succeed on this ground. His next objection was that Khatooni is not part of the record of the record-of-rights. Taking up the second objection first, clause (c) of sub-clause (2) of section 39 of the Punjab Revenue Act states that a map of the estate is also included in the Record-ofRights. Further Appendix 'A' of the West Pakistan Land Revenue Rules, 1968 says that the holding slip or Khatooni is a map of the estate, the Khatooni is therefore, part of Record-of-Rights and has got a presumption of truth. Section 56 of the West Pakistan Land Revenue Act, 1967, lays down that every land wherever situate is liable to pay land revenue. Therefore, even if, land revenue is not mentioned in the Khatooni Exh. P-2, it makes little difference. It is found from Exh. P-2 that Muhammad Ismail was the owner of 167 Kanals of land, the same, was therefore, liable to be assessed to the land revenue under section 56 of the Act. Therefore I would hold that in the Khatooni Exh. P-2 originally Ismail, plaintiff, and now his legal representatives, i.e, the present plaintiffs have become the owners of the estate. In the authorities cited on behalf of the learned counsel for the defendants, the facts were different. In those cases, the area on the basis of which the plaintiff claimed superior right of pre-emption was built up and was residential area. Therefore, it was held that since the land was not liable to land revenue, therefore, the plaintiff could not succeed.
12. For all the foregoing reasons, the issue is answered in favour of the plaintiffs and against the defendants."
5. Against the above judgments and decrees, the vendees filed two civil appeals, which were allowed by the learned Additional District Judge, Mu7affargarh, through his judgments dated 28-6- 1988, on the ground that the plaintiffs failed to prove that their land was assessed to land revenue.
It may be pertinent to reproduce the relevant portion of the above judgments, which reads as follows:-- "It was, therefore, incumbent upon the plaintiffs/respondents to prove that the landed property owned by them was assessed to land revenue but the plaintiffs/respondents had failed to prove this fact. The plaintiffs/respondents, therefore, could not be said to be the owners of the estate wherein the suit land was situated and they, therefore, could not claim their superior right of pre- emption against the defendants/appellants being owners of the estate."
6. Thereupon the appellants filed above R.S.As., which were dismissed by the judgments under appeal on the above ground which found favour with the learned Additional District Judge. The learned Judge in chamber, while dismissing the above R.SAs., held as follows:- "Therefore, in view of Article 49 read with illustration (e) of Article 129 of Qanun-e-Shahadat, 1984, entries in Exh. P. 2 supported by unrebutted statement of P.W. 4 can be accepted as evidence of ownership of agricultural land in the revenue estate by the original plaintiff Muhammad Ismail who having died in course of trial, his rights in the land devolved upon his successors. To this extent, there is not much doubt that the original plaintiff and upon his death, his successors owned agricultural land in the revenue estate of Marian. Real difficulty comes in whether the land was assessed to land revenue. Admittedly, there is no evidence to indicate that the land owned by the plaintiff or his successors was assessed to land revenue. Exh. P.2 gave no indication about it. In fact, there is no column in Exh. P.2 to show assessment of land revenue on the land recorded in it."
' After that, the appellants filed two petitions for leave to appeal, which were granted for the above reason.
7. In support of the above appeals, Mr. Asif Saeed Khan Khosa, learned counsel appearing for the appellants, has vehemently urged that as all the Courts below have held that the appellants own agricultural land measuring 167 Kanals in the revenue estate of Marian, the learned Additional District Judge could not have reversed the judgments and decrees of the learned Senior. Civil Judge on the ground that the appellants failed to prove that their land was assessed to land revenue, as there is no such legal requirement under Punjab Prc-emption Act, 1913, hereinafter referred to as the Act. It has been further urged by him that the learned Judge in chamber has erred in not rectifying the above error of law committed by the learned Additional District Judge.
' On the other hand, MrA.R. Sheikh, learned Sr. ASC appearing for the respondents, has contended that in order to succeed in a pre-emption suit, a plaintiff is required to prove two facts: (i) that he owns agricultural land, and (ii) that his land is assessed to land revenue.
8. We may refer to the relevant provisions of the Act, West Pakistan Land Revenue Act, 1967, hereinafter referred to as Act of 1967, and the cases cited by the learned counsel for the parties.
' It may be. Observed that subjection (1) of section 3 of the Act defines "agricultural land" as means land as defined in the Punjab Alienation of Land Act, 1900 (as amended by Act I of 1907). It excludes the right of a mortgagee whether usufructuary or not, in such land.
' Subsection (3) of section 2 of the latter Act defines the expression "land" as 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 the purposes subservient to agriculture or for pasture. It also 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 on any fixed percentage of the land revenue payable by an inferior land owner to a superior land owner;
(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; and
(g) all trees standing on such land. We may point out that term "estate" has been defined in clause
(9) of section 4 of Act of 1967 as under:-- "(9) "estate" means any area--
(i) for which a separate record-of-rights has been made; or
(ii) which has been separately assessed to land revenue; or
(iii) which the Board of Revenue may, by general rule or special order, declare to be an estate."
' It may be observed that subsection (2) of section 3 defines the term "village immovable property" by providing that it shall mean immovable property within the limits of a village, other than agricultural land. Whereas, subsection (3) of section 3 of the Act defines the expression "urban immovable property" and provides that it shall mean immovable property within the limits of a town, other than agricultural land. It further provides that for the purposes of the said Act, a specified place shall be deemed to be a town-
(a) if so declared by the Board of Revenue by notification in the official Gazette, or
(b) if so found by the Courts.
' It may further be noticed that section 4 deals with the right of preemption and provides that, "the right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of ales and in respect of such property only in the case of sales or foreclosures of the right to redeem such property. Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale."
' We may also refer to section 15 of the Act, which deals with the question of persons in whom the right of pre-emption vests in respect of sales of agricultural land and village immovable property. It provides categories of various clauses of pre-emptors in clauses (a), (b) and (c). It may be observed that clause (c) provides that if no person having a right of pre-emption under clause (a) or clause (b), then the persons mentioned in sub-paras. "firstly" to "fifthly" will have the right of pre- emption according to the priority given therein. It may further be observed that sub-para. With the caption "thirdly" confers right of pre-emption " in the owners of the estate." According to the learned counsel for the appellants, the appellants' case falls under the above sub- para.
9. We may also mention that clause (14) of section 4 of the Act of 1967, defines the term "land revenue" as means land revenue assessed or assessable under the said Act or under any other law for the time being in force relating to land revenue. It includes any rates imposed on account of increase in the value of land due to irrigation. Whereas, subsection (1) of section 56 of the said Act lays down that all lands to whatever purposes apply and wherever situated are liable to the payment of land revenue to Government, except-- "(a) such land as has been wholly exempted from that liability by special contract with Government, or by the provisions of any law for the time being in force;
(b) such land as is included in village limits;
(c) such land as is included in cantonment limits;
(d) land on which property tax under the West Pakistan Urban Immovable Property Tax Act, 1958 (W.P. Act V of 1958), is payable;
(e) waste and barren land not under the cultivation for a continuous period of not less than six years immediately before the date of notification of general assessment or re-assessment under section 59; provided that where any waste and barren land is brought under cultivation at any time after the date of such notification, such land shall not be liable to the payment of land revenue for a period of six years from the date it is so brought under cultivation."
10. We may now refer to the cases referred to by the learned counsel for the parties.
(i) Lachhman Singh v. Natha Singh and another (AIR 1930 Lah. 273); ' in which in a second appeal relating to pre-emption suit, a reference was made to a Full Bench of the Lahore High Court on the question, whether Nadir All Shah v. Wali (AIR 1925 Lahore 202) has been correctly decided. To put it differently, the question was, whether in a suit to pre-empt a sale, the vendee, who on the date of the sale in dispute had equal status with the pre-emptors derived by reason of his ownership of other immovable property, could defeat the pre-emptors' right even though, subsequent to the sale he had lost in another pre-emption suit the property by virtue of the ownership of which he claimed that status. The above question was answered in the affirmative by holding that there can be no question that a person who has purchased agricultural land in a village as a Khewatdar or an owner of the estate to lose his status regardless of the fact that his purchase is or is not voidable at the instance of another person. While answering the above question, the following observations were made by Tek Chand, J.:-- "In support of this position, the first contention raised by Mr. Fakir Chand on behalf of the plaintiff- appellant is that the expression "owner of the estate" as used in section 15 must be taken to mean an owner with an indefeasible title. He is, however, unable to advance any cogent reason to justify such a narrow interpretation being put upon the plain words used by the legislature. The Pre- emption Act does not define the term "owner of the estate", but it has been judicially held to be equivalent to a "Khewatdar"; see Mahi v. Charat Singh (1910) 7 I.C. 213) and Salamat Rai v. Kanshi Ram (1918) 30 P.L.R. 1918). This expression was used for the first time in the Pre-emption Act of 1905 in place of the words "landholder of the village" which were found in the corresponding section of the Punjab Laws Act 4 of 1872, and which, if literally construed, included an owner in the Abadi as well as owner of the agricultural land. This however, was not in accord with the real intention of legislature: see Phallu v. Makkarab ((1888) 153 P.R. 1888). In order, therefore, to put the matter beyond dispute and to limit the pre-emptive right to those persons only, who owned revenue- paying land the expression "owner of the estate" was used in Act II of 1905. There is no doubt that the word "estate" has the same meaning here as is given to it in section 3(1), Punjab Land Revenue Act, 1887, namely: "An area (a) for which a separate Record-of-Rights has been made; or (b) which has been separately assessed to land revenue, or would have been so assessed if the land revenue had not been released, compounded for, or redeemed; or (c) which the Local Government may, by general rule or special order, declare to be an estate.
' Now there can be no question that a person, who has purchased agricultural land in a village is a Khewatdar or an "owner of the estate" regardless of the fact that his purchase is or is not voidable at the instance of another person."
(ii) Chanan Din v. Chanan Din and others (AIR 1933 Lahore 213); ' In the above case, the facts were that a suit for pre-emption was brought by Chanan Din and Hasan Din against the defendant-vendor Karam Bakhsh and the defendant-vendee Chanan Din in respect of 14 Kanals 18-1/2 Marlas of land situate within the area .Of Mozang. The defendant- vendee Chanan Din inter alia pleaded that he had an equal right of pre-emption being an owner of the estate. Trial Court recorded finding in favour of above vendee and dismissed the suit, but upon appeal filed by the plaintiffs/pre-emptors, it was held by the Additional District Judge that the vendee was not an owner of the estate. It may be observed that the claim of the defendant- vendee to be an owner of the estate was based on his ownership and possession of two plots of land; one measuring 210 feet and the other 4 Marlas, of which latter was assessed to revenue of 1 anna 6 pies. The above plot of 4 Marlas was described as Qabil Tamir i.e, suitable for building and paying revenue of 1 anna 6 pies. The other plot measuring 210 feet was not assessed to land revenue. It was contended before the lower appellate Court that the plot of 4 Marlas was not rural agricultural land, but a building site situate within the Abadi and consequently its ownership could confer no right of pre-emption even though it was assessed to land revenue, which contention was accepted by the learned Additional District Judge on the basis of the authority of Jawala Singh v.
Tara Singh (AIR 1920 Lahore 94), Narain Singh v. Gopal Singh (AIR 1913 (13) 106 P.R. 1913) and Muhammad Said v. Shah Nawaz (1921) 60 I.C. 580). However, upon second appeal, Tapp, J.
Reversed the above finding of the learned appellate Court by holding as under:-- "It seems to me after consideration of these various authorities that the determining factor in such cases is whether the area in question is or is not assessed to land revenue. Its extent, situation and the purpose for which it is brought or to which may be devoted are absolutely immaterial. For the above reasons I would hold that the appellant-vendee is an owner of the estate within the meaning of section 15(c) (thirdly), Pre-emption Act, and in consequence the plaintiff-respondents have no superior right of pre-emption in respect of the land in suit."
(iii) Salehon Muhammad and another v. Shera and others 1977 SCMR 297; ' in which the facts were that the pre-emptors owned agricultural land in the village, while the vendees did not own agricultural land in the village but owned land in the village Abadi, on which they had made construction. The vendees claimed that since they were also owners of estate like pre-emptors, the suit could not be decreed, their right of pre-emption being equal to that of the preemptors. The question before the High Court was, whether the owner of land in the village Abadi could be deemed to be an owner of the estate within the meaning of Section 15(c) (thirdly) of the Punjab Pre-emption Act, 1913. The learned Judges of the High Court, following the authorities reported in Narain Singh v. Gopal Singh (supra) and Lachhman Singh v. Natha Singh and another (I.L.R. 11 Lahore 128) on the doctrine of "stare decisis", held that the vendees who were owners of land in the village Abadi, could not be deemed to be the owners of the estate within the meaning of the above provision of the Punjab Pre-emption Act, 1913. This Court, while maintaining the judgment of the High Court and after referring to the case-law, held as follows: "Learned counsel for the parties heard at length. Learned counsel for the appellants could not satisfy us in the least that the view expressed in the two authorities mentioned above was not correct. The object of the Pre-emption Act is to exclude non-proprietors from entering the proprietary body of an estate and if owners of houses in village Abadi are held to be owners of the estate for the purposes of pre-emption then the whole object of the Pre-emption Act would be defeated."
(iv) Muhammad Bashir v. Ghulam Akbar (1982 SCMR 1018).
' In the above case, the facts were that the land measuring 115 Kanals 11 Marlas situate in village Karyala, Tehsil Chakwal, was purchased by the petitioner from Fajar Ali and others by a registered sale-deed dated 1-10-1970 for a sum of Rs,60,000. Respondent Ghulam Akbar, pre-empted the sale on the basis of being owner in the estate. The above suit was resisted by the petitioner/vendee on the ground that the respondent/plaintiff was not an owner in the estate and the only immovable property which he owned was, 1 Kanal and 18 Marlas i.e, 1/2 share of Khasra No, 1365 without any share of Shamilat which he purchased from Mst. Majidan for residential purposes and that the petitioner/vendee was related to one of the vendors, namely, Fajar Ali. However, the suit was decreed, but upon appeal the learned District Judge, Jhelum, accepted the appeal and dismissed the suit. Thereupon, the respondent/plaintiff filed a second appeal, which was accepted. Judgment of the learned District Judge was set aside and the judgment of the Civil Court was restored. This Court, while declining leave to appeal, observed as follows:-- "4. We have considered the arguments of the learned counsel and find that out of the total area, 1 Kanal and 8 Marlas is still used for agricultural purposes while on 10 Marlas the respondent had constructed a house and thus the area left out is still used for agricultural purposes. Even the Revenue Record shows that seasonal crops are sown on the part of land which has not been built upon and there was no evidence before the Court that the land of the respondent is contiguous or not in the midst of village Abadi. The argument of the learned counsel regarding the validity of the sale is also without any legal force as the law of pre-emption is the law of substitution and no other Court except the authority concerned under M.L.R. 115 can go into the question of the validity of the sale. The petition is without any merit and is, therefore, dismissed."
(v) Abdul Rashid and others v. Khurshid Ahmed and others PLD 1989 SC 373(2); ' In the above case, the facts were that Mst. Ghulam Sarwar and others sold land measuring 60 kanals and 8 Marlas through registered sale-deed, dated 14-6-1979 to Abdul Ghafoor and others for a sale consideration of Rs,1,70,000. Before the above sale transaction, the appellants through Mutation No, 52, which was attested on 28-7-1970, purchased Sikni land in the same estate which was recorded in the mutation as `Ghair Mumkin Abadi' but liable to land revenue according to the relevant Jamabandi. The respondents pre-empted the sale of the land sold by Mst. Ghulam Sarwar and others. The above suit was resisted by the vendees on the ground that they also possessed the same qualification because of the purchase of the above land under aforesaid Mutation No,52, dated 28-7-1970, but the suit was decreed, against which appeal was filed before the High Court. It was again urged by the appellants/vendees that they possessed the same qualification because of above Mutation No,52. It was also urged that the above land purchased was agricultural land as it was under cultivation and assessed to land revenue. The High Court, after reappraisal of the evidence, held that the land was purchased by the appellants/vendees under above Mutation No,52, dated 28-7-1970 for Sikni purposes and was shown as `Ghair Mumkin Abadi' not only at the time of sale mutation but also in the subsequent Jamabandi. It was further held that the land was never under cultivation and, therefore, it could not be classified or categorised as agricultural land.
Accordingly, the High Court upheld the judgment and decree of the trial Court. The matter came up before this Court with the leave. Muhammad Haleem, C.J. Referred to the relevant case-law and held as follows:--- "In Mst. Sardar Begum v. Muhammad Ilyas 1983 CLC 1570, it was held that it was the status of the land at the time of the sale which was crucial. In Shah Muhammad v. Mt. Piari AIR .1936 Lah. 202, it was held that the expression "the owner of the estate" used in section 15 of the Punjab Pre-emption Act, 1913, imported the meaning of ownership of agricultural land and once the land is converted into a building site it ceases to be a part of the estate and its owner is deprived of all privileges which he could otherwise enjoy under the law. In Chint Ram v. Harbhagat Singh AIR 1940 Lah. 344 the facts closely resemble the status of the land before its purchase in the instant case, and it was held that the owner of the plot of land unassessed to revenue, hitherto uncultivated except to a trifling extent and clearly destined to be a building site, could not be regarded as an "owner of the estate" under section 15 of the Punjab Pre-emption Act, 1913. Rahim Bakhsh v. Wahid Bakhsh PLD 1979 Lah. 544, follows Shah Muhammad's case wherein it was held that the change in the character of land from agricultural to building site by an owner disabled him to be an owner of the estate under section 15 of the Punjab Pre-emption Act, 1913. In Salehon Muhammad v. Shera and others 1977 SCMR 297, the cases of Shah Muhammad and Chint Ram were approved while holding that owners of houses in village Abadi could not be regarded as owners of the estate. The facts in Mehrab Shah v. Shah Zaman 1985 SCMR 497 are altogether different as the dispute was that the appellant had in collusion with the revenue staff fraudulently got his name inserted in the Revenue Record as being in possession of the land in the suit without payment of Lagan and on that basis made a claim for adverse possession. It has no relevance to the point in issue in this case. In Shah Muhammad v. Khan Poor PLD 1986 SC 91, the dispute related to a conflict of entry in the column of cultivation of Jamabandi with that over Lagan column and the question arose as to which should be given preference. It may here be mentioned that in this case the decision of this Court in Mehrab Shah's ase was followed. This case has no relevance either. In Muhammad Akhtar Chishti v.
Ijaz Ahmed and others 1982 CLC 1700 (Lah.) the facts are distinguishable as the land before its purchase was under cultivation and assessed to land revenue, and it was subsequently in Kharif 1970 that it was recorded as Ghairmumkin Karkhana. It was accordingly held that as the assessm ent under section 64 of the Land Revenue Act continues for the fixed period of 25 years, the fact that the status of the land was changed would not make any difference as it was subject to land revenue. This finding in our view is against the concept of the expression "owner of estate" under section 15(c), clause thirdly of the Punjab Pre-emption Act, 1913, as laid down by this Court in Salehon Muhammad v. Shera and others 1977 SCMR 297 which decision was not noticed by the learned Single Judge.
' Accordingly, we would not approve the test laid down in this case of the "owner of estate" which means one who owns revenue paying land and not the land which loses its culturable and is converted into a building site."
(vi) Unreported judgment, dated 16-2-1992 in Civil Appeal No, 396 of 1990 (Muhammad Ansar and others v. Ghulam Fatima and others), which had arisen out of the leave granting order relied upon for the purpose of granting leave in the present appeals and reported in 1990 SCMR 1339, already referred to hereinabove. In the above case, Abdul Qadeer Chaudhry, J. Sitting with Muhammad Afzal Zullah,. C.J. And Wali Muhammad Khan, J., dilated upon inter alia the question involved in the present case as follows:--- "The learned counsel for the appellants submitted that even if no land revenue was paid the appellant could not be treated as non-owner of the estate. He has submitted that admittedly, the appellant was owner of agricultural land which was termed as Ghairmmkingarh, therefore, it was not assessed to land revenue. It is not at all necessary that agricultural land must be assessed to land revenue. Though it may not be correct that the owner of an estate must possess agricultural land assessed to land revenue. Some lands may not be assessed to land revenue, therefore, the status of agricultural land is not changed and a person who owns such land is deemed to be an owner of the estate but in the present case, the suit land is situated in a Town Committee and the character of the suit land has since been changed."
(vii) Abdul Hamid and 2 others v. Mehrban Ali 1989 CLC 195; ' in which a learned Single Judge of the Lahore High Court, while accepting the revision of vendees, held that payment of land revenue itself was insufficient to confer the status on the plaintiff as an owner of estate to qualify for pre-empting sale if the land owned by him was no longer agricultural, but converted into a building site in a village or in a town.
11. We may observe that the term "agricultural land" has not been defined in subsection (1) of section 3 of the Act but the definition of the same has been incorporated by reference from the Punjab Alienation of Land Act, 1900, subsection (3) of section 2 of which defines the expression "land" as to mean 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 the purposes subservient to agriculture or for pasture and includes the items mentioned in sub-clauses (a) to (g) referred to hereinabove in para.
8. We may state that the term "estate" as pointed out hereinabove in para. 8, means any areas for which a separate record-of-rights has been made or which has been separately assessed to land revenue or which the Board of Revenue by general rule or special order declares so.
' We may also state that clause (14) of section 4 of Act of 1967 defines the term "land revenue" as to mean land revenue assessed or assessable, and subsection (1) of section 56 of Act of 1967 (e) makes all lands liable to the payment of land revenue except land specified in clauses (a) to (e) thereof, referred to hereinabove in para.
9. A resume of the above provisions of the statutes indicate that though agricultural land is subject to payment of land revenue, but non-payment of the same shall not change the character of the agricultural land. It is also evident that under the definition of the "land" given in subsection (3) of section 2 of the Punjab Alienation of Land Act, 1900 ibid any land occupied as the site of any building in a town or village is excluded from the purview of agricultural land.
' We may also mention that section 4 of the Act, which deals with the right of pre-emption, speaks of three categories of properties, namely, agricultural land, village immovable property and urban immovable property. It may also be mentioned that clause (c) thirdly of section 15 of the Act confers right of pre-emption on an owner of the estate.
' We may point out that none of the above provisions of the Act envisages that an owner of agricultural land or an owner in the estate whose land is not assessed to land revenue, shall lose the right of pre-emption. Even the definition of the term "estate" given in clause (9) of section 4 of of 1967 includes in its definition any area for which a separate record-of-rights has been made or which the Board of Revenue may by general rule or special order declare to be an estate.
12. We may revert to the case-law. In the case of Lachlan Singh (supra), the Full Bench of the Lahore High Court was not called upon to decide the question, whether assessment to land revenue is a prerequisite in order to make an owner of agricultural land to claim the right of pre-emption. The question before it was, whether the factum that a vendee's claim of superior right of pre-emption can be defeated on the ground that, the title to the agricultural land on the basis of which his superior right is founded is voidable at the instance of another person. The observation that "in order, therefore, to put the matter beyond dispute and to limit the pre-emptive right to those persons, who owned revenue paying land" is an obiter dictum. Even otherwise, it does not lay down that if an owner of agricultural land fails to pay land revenue, he shall lose his right of pre-emption.
In Chanan Din's case (supra), the vendee claimed superior right of pre-emption as the owner of the estate on the basis of ownership of two plots, one measuring 210 feet and the other 4 Marlas, of which latter was assessed to revenue of 1 anna 6 pies, but was described in the Revenue Record as "Qabil Tamir". The trial Court accepted the vendee's above superior right and dismissed the pre- emptor's suit, but the Additional District Judge upon appeal reversed the judgment on the ground that the above plot was not agricultural but was "Qabil Tamir". Tapp, J. Upon second appeal set aside the judgment of the appellate Court and restored the judgment of the trial Court and observed that "the determining factor in ' such cases is whether the area in question is or is not assessed to land revenue". With due deference to the learned Judge, we may observe that the above view is counter to the view taken by this Court in the case of Abdul Rashid and others (supra), wherein Muhammad Haleem, C.J.
Disapproved the test laid down in the case of Muhammad Akhtar Chishti v..Ijaz Ahmed and others 1982 CLC 1700 (Lahore) that notwithstanding the change of character or status of land, the owner thereof would remain "owner of estate" if the land remains subject to land revenue. In the above case, the vendee claimed superior right of pre-emption on the basis of land purchased for Sikni purposes, the land was shown at the time of sale as `Ghair Mumkin Abadi' in the Revenue Record and also in subsequent Jamabandi. This Court maintained the High Court judgment holding that the vendee could not sustain his claim of the superior right of pre-emption on the basis of above land of which character was changed. We may also observe that a learned Single Judge of the Lahore High Court in the case of Abdul Hamid and 2 others (supra), has taken a contrary view by holding that payment of land revenue itself was insufficient to confer on the plaintiff status as an owner of the estate. Even in the case of Vittam Chand and 'another v. Khodaya and others AIR 1929 Lahore 164, Addison, J. Held that mere fact a land pays land revenue does not make it agricultural land.
' We may further observe that in Salehon Muhammad's case (supra), vendees claimed superior right of pre-emption on the basis of land owned by them in the village Abadi, on which they had made construction. This Court after referring to the case-law, maintained the judgment of the High Court, wherein it was held that the owner of land in the village Abadi, could not be deemed to be an owner of the estate within the meaning of section 15(c)(thirdly) of the Act. So the question whether an owner of agricultural land can claim to be an owner in the estate if he has not proved payment or assessm ent of land revenue was not involved. In Muhammad Bashir's case (supra), this Court maintained the pre-emption decree though the pre-emptor owned a small piece of agricultural land, which was cultivated, on the basis of which right of pre-emption was founded. In the unreported recent judgment in the case of Muhammad Ansar (supra), this Court has held that "it is not at all necessary that agricultural land must be assessed to land revenue. Though it may not be correct that the owner of an estate must possess agricultural land assessed to land revenue. Some lands may not be assessed to land revenue, therefore the status of agricultural land is not changed and a person who owns such land is deemed to be an owner of the estate".
Since in the above case the land was shown as "Ghairmumkingarh" in the Revenue Record and was situated in a Town Committee, so it was held that the character of land had changed. We may again point out that on the basis of leave granting order in the above appeal, leave was granted in the present appeals.
13. However, Mr. A.R. Sheikh, learned Senior ASC for the respondents has urged that the view taken in Muhammad Ansar's case is contrary .To the view taken by this Court in Salehon Muhammad's case. In our view, this is not so as pointed out hereinabove that the above case did not involve the point in issue.
' We are inclined to subscribe to the view taken in Muhammad Ansar's case. Even otherwise, it is binding on us as it has been decided by a Bench of three learned Judges. We are of the view that the question whether an owner of agricultural land is an owner of the estate, will depend on the factum, whether the land has changed the character or status or not and not on the fact, whether such land is subject to land revenue. An agricultural land, which may have become a building site will not remain agricultural land merely because it remained subject to land revenue and the owner thereof cannot be treated as owner of estate. We may again point out that a building site has been excluded from the definition of land under subsection (3) of section 2 of the Punjab Alienation of Land Act, 1900, referred to hereinabove in para.
1. The factum that land is subject to land revenue, will be relevant factor to decide the nature of the land in issue, but would not be conclusive.
14. Adverting to the facts of the present appeals, we may observe that there is a concurrent finding of all the Courts below on the factum that the appellants' predecessor-in-interest and now the appellants own agricultural land measuring 167 Kanals in the revenue estate of Marian. It was not the case of the respondents before the Courts below that the above land's status has changed.
The appellants have been non-suited by the learned Additional District Judge and by the learned Judge in Chamber on the ground that the appellants have failed to prove that their land was assessed to land revenue, which ground, in our view, is not sustainable for the foregoing reasons.
The appellants in Civil Appeal No. 1545 of 1990 had produced before the trial Court Exh.P/14 (at page 85 of the paper-book) an extract from the mutation register, which indicates that the land was in self-cultivation of the appellants' predecessor-in-interest but the column relating to revenue i.e. Column 13 is blank. The appellants also attempted to produce similar document in Civil Appeal No.1544 of 1990 before the learned Additional District Judge, as an additional evidence under Order XLI, Rule 27, C.P.C., but their request was declined. The appellants have also filed applications under Order XIV, Rule 8 read with Order XXXIII, Rules 5 and 6 of the Supreme Court Rules, 1980, in the above two appeals for placing on record revenue receipts, copies of Dhal Bachh and copies of Khatoonis. We are not inclined to grant above applications. But since we are of the view that the above ground on which the appellants were non-suited is not sustainable in law, the above appeals are allowed; the judgments/decrees of the learned Additional District Judge and of the learned Judge in Chamber are set aside, and the judgments/decrees of the learned trial Court are restored. However, there will be no order as to costs.