' The dispute in this case relates to land measuring 4 Kanals 16 Marlas in Mauza Khayali Shahpur, Tehsil and District Gujranwala. It was owned by Muhammad Sharif and Abdul Ghani. It was purchased by the respondent vide sale-deed dated 6-9-1965 for Rs, 2,000. The appellant filed a suit for preemption on 5-9-1960 claiming that he had superior right to pre-empt the sale, being collateral of the vendor. The trial Court decreed the suit on 7-12-1967. However, the appeal filed by the respondent was accepted by the lower appellate Court on 24-11-1969 and the suit was dismissed.
2. The sole question for determination in this appeal is that as to whether or not the land in question is pre-emptible. The plea of the appellant is that the land in dispute is agricultural in character though situated within the urban limits of Gujranwala Town. On the other hand, the contention of the respondent is that the property in question is urban immovable property and hence not pre- emptible.
3. Section 16 of the Pre-emption Act deals with the right of pre-emption in respect of urban immovable property. Urban immovable property is defined as under:-- "(3) 'urban immovable property' shall mean immovable property within the limits of a town, other than agricultural land. For the purposes of this 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;"
4. With the assistance of the learned counsel for the parties, I have gone through the entire evidence brought on record. The only evidence which is there, is to the effect that this property had come within the municipal limits but there is nothing on record to suggest that it had assumed character of urban immovable property. Therefore in order to render this property immune to pre- emption either (i) Notification under section 7 of the Act should have been issued or (ii) such evidence that the principal avocation of large body of persons who inhabit it are bound together by common interest in agriculture and the place also possesses other distinctive village features like existence of a large area of agricultural land, ordinary village Abadi or ordinary village officers and record of rights. Even the extension of modern facilities to the place like electricity, building or approaches/roads, establishment of educational institutions, dispensary/hospital, a post office, a financial institution in the nature of a bank and a Bazar to cater for the day to day needs of the residents of the locality would not be enough to shed its basic pastoral character so as to invest it with the legal status of a town.
5. This is so laid in Abdullah and 2 others v. Sher Khan (1989 CLC 1732), Muhammad Abdullah and others v. Noor Muhammad and others (1990 CLC 726) and Muhammad Akhtar Chishti v. Ijaz Ahmed and 5 others (1982 CLC 1700 at page 1703) and Hafiz Hassan Muhammad and 2 others v. Abdul Hamid and others (PLD 1982 SC 159).
6. In the case in hand, there is nothing on record to prove that the land in question had lost its pastoral character. The mere fact that the land is bounded by two factories on two sides will not convert it into urban immovable property, particularly when on the back side there is agricultural land. Exh. P.1 (Khasra Girdawari) and P.2 (Jamabandi) demonstrate it to be under cultivation at the time of sale. P.W.1 Mahand Bakhsh has come forward to say that he was cultivating the land on Hissa Batai. In Abdullah's case supra the presence of Lambardar of the village and Patwari have been treated to be a factor to hold that a particular property is not urban immovable property. The documents Exhs. P.1 and P. 2 established that there is a Lambardar in the village and also a Patwari.
Furthermore, in the sale-deed itself it is mentioned that the land was being purchased for Ahata.
7. Learned counsel for the respondent has drawn my attention to Exh. P.1 (copy of Khasra Girdawari) to show that in Kharif 1965 the land was lying fallow. He, however, conceded that in Rabi 1966 the land was under Chatala (a fodder crop). Even if for one crop the land had been left fallow that would not make any difference.
8. Learned counsel for the appellant has drawn my attention to the judgment of the Additional District Judge to contend that the lower appellate Court had not also discussed the evidence or the principles of law applicable thereto while holding that the land in question was urban immovable property.
9. I have gone through the judgment and find myself in agreement with this submission. The lower appellate Court has not taken care to properly appreciate the case and merely by observing that the land was primarily situated in a factory area, has proceeded to hold that it has become urban immovable property. Vide paragraph 6 of the judgment he has observed that "I am driven to think that the land in question in losing its character as an agricultural land and is becoming a part and parcel of the factory area due to the urbanisation and the industrialization of the area in question."
This is not satisfactory manner of dealing with the controversy involved in the case. In the face of the evidence overwhelmingly in favour of the appellant that property was agricultural land though situated within the urban limits of Gujranwala, it could not have been held to be urban immovable property. One has to, now, look back to the year 1965 to visualise the disputed land so situated in a village though within the limits of Gujranwala Town, when neither process of industrialisation had picked up by that time so as to render it as urban nor the residents of the locality had left their principal avocation of agriculture in those days.
10. In my view, the judgment of the learned trial Court is fully justified on the facts and circumstances of the case and the judgment of the lower appellate Court merits to be set aside.
' In view of what has been said above, this appeal is accepted and judgment and decree of the lower appellate Court is set aside and judgment and decree of the trial Court is restored.
11. The appellant is allowed two months time to deposit the pre-emption amount in the trial Court, if he has not done so already, failing which his suit shall stand dismissed. No costs. Pre-emption decree restored.