' This revision is directed to challenge the judgment and decree dated 6-4-1985 of the learned Additional District Judge-I, Peshawar whereby the judgment and decree dated 5-6-1984 of the learned Civil Judge, Peshawar was set aside and the appeal filed by Subedar Sher Afzal Khan and others was accepted and the decree for possession of the suit land by pre-emption in their favour was passed on payment of pre-emption money of Rs,1,15,500.
2. The facts in brief are that Subedar Sher Afzal and Ashraf Khan preempted the sale of the suit land by vendor in favour of Muhammad Hanif and Muhammad Saeed vendees by filing pre-emption suit in the Court of Civil Judge, Peshawar. They claimed superior right of pre-emption being co- sharers, participator in immunities and appendages and contiguous owners and alleged that the suit land was sold for Rs,75,000 and that fictitious amount of Rs,1,15,500 was mentioned in the sale Mutation No,1777 attested on 4-11-1978 to defeat their right of pre-emption. The suit was contested on various legal and factual grounds. The trial Court on the issues framed from the pleadings of the parties recorded evidence and then while discussing the issues of cause of action and plaintiffs' superior right pre-emption, it was held that the suit Khata in the surroundings had been amalgamated in the Gulberg Residential Colony consisting of bungalows and was within the area of Municipal Corporation and that it had lost the character of agricultural property. It was further held that the plaintiffs had no contiguous plots or residential houses to the suit land and thus the plaintiffs had no superior right of pre-emption and no cause of action to bring the suit. On the issues of payment of price and market value of the land the findings of the trial Court are that the amount of Rs,1,15,500 was actually paid and was the market value of the suit land. On the basis of the findings on issues Nos.1 and 8, plaintiffs' suit was dismissed on 5-6-1984.
3. Feeling aggrieved from the judgment and decree dated 5-6-1984 of the lower Court, an appeal was preferred by the plaintiffs in the Court of Addl. District Judge, Peshawar who disagreed with the findings of the lower Court on issues Nos.1 and 8 and held that the suit Khasra number is in joint Khata as per Jamabandis for the year 1970-71, copy Exh.PW1/1 which had not been partitioned and as such the plaintiffs being co-sharers having inherited the property were proved to be the co- sharer in the Khata and the fact that the surrounding area was occupied by the bungalows would not affect the plaintiffs' superior right of pre-emption. The findings of the trial Court on market value of the land was upheld. Consequently vide his judgment dated 6-4-1985 the appeal was accepted and the judgment and decree of the lower Court was set aside and decree for possession of the suit property through preemption as prayed for was granted to the plaintiffs on payment of Rs,1,15,500.
4. The judgment' and decree of the appellate Court is assailed in this revision by the vendees. One of the vendees has died and is substituted by his L.Rs,
5. Sh. Wazir Muhammad, Advocate, for the petitioner contended that the appellate Court was not correct in decreeing the pre-emption suit, for, it is proved on the record that the suit property has lost the character of the agricultural property and is surrounded by the bungalows within the area of Municipal Corporation. In support of his contention that a sale of such land proved to be within the urban area is not pre-emptible, reliance was placed on the following case-law:--
(1) PLD 1975 Lahore 359.
(2) 1981 SCMR 239.
(3) PLD 1986 Lahore 242.
(4) PLD 1988 Peshawar 13.
6. The learned counsel for the petitioners submitted that the authorities referred to above were ignored by the appellate Court though referred.
7. Mian Muhammad Yunis Shah, Advocate, for the plaintiff-respondents in reply argued that the case-law cited at the bar is not applicable to the instant case, for, the question involved is a question of fact to be decided on the basis of evidence recorded at the trial. He contended that the vendees had purchased undivided shares in the Khata and the land is shown as Nehri Awal in the mutation which is agricultural land, the sale of which could be preempted. . I have considered the respective contentions of the learned counsel for the parties and have also perused the evidence. The evidence brought on the record clearly shows that the suit Khata in which the suit Khasra number is situated has lost the character of agricultural property. The conclusion arrived at by the learned Civil Judge about the nature of the land is based on correct appreciation of evidence which could not be upset by the appellate Court. It is true that in the revenue papers up to Jamabandi for the year 1970-71 the land is shown as agricultural property but now the entire area has been converted into residential area and plots and no joint Khata is in existence. The Patwari Halqa admitted this fact that the suit Khata and its surrounding area have now amalgamated into Gulberg Residential Colony. Even Subedar Sher Afzal plaintiff admitted that the locality of Gulberg consists of bungalows and the suit property is surrounded by the vacant plots. The appellate Court has therefore, misread the evidence. The Khata may be joint tut in fact the area has become an urban area. In this situation the plaintiff-respondents cannot claim the superior right of pre-emption. In Allah Bakhsh v. Ilahi Bakhsh and 3 others PLD 1975 Lahore 359 the concurrent findings of the two Courts that the land in dispute was agricultural property though situated within the Municipal Committee's limits were set aside and the pre-emption suits were dismissed. It would be of advantage if the relevant observations made therein are reproduced hereunder:-- "The property having adopted the colour of urban immovable property the onus lay on the pre- emptor to show that custom of pre-emption for urban immovable property also existed in that area. Learned counsel for the respondent is unable to refer to any such evidence on the record. He, however, reiterated his stand by the submission that since the land in dispute is described as agricultural land in the revenue records and in the headnotes of the sale-deeds the property is pre-emptible as agricultural land. I have already discussed that the Khasra Girdawari also describes a portion of the land as ghair mtankin abadi and the perusal of the sale-deeds and area mentioned therein obviously goes to show that the alienations were for small pieces of lands for construction purposes. The land in dispute, therefore, is obviously urban immovable property."
' The aforesaid judgment of the Lahore High Court was challenged before the Supreme Court where leave to appeal was refused. 1982 SCMR 457 may be seen.
9. The point in issue in the present case is similar to that which came up for decision before this Court in the case of DrAbdul Jamil v. Malik Nazar Mohyuddin and others PLD 1988 Peshawar 13. On the basis of evidence and relying on the case of Raja Khizar Hayat and others v. Saleh Muhammad reported in PLD 1986 Lahore 242, it was held that the "land which had not retained its agricultural character and is now covered by built-up area, the preemptor cannot be allowed to claim that the suit land is an agricultural land and C that he has the right of pre-emption thereto. The appellate Court's findings are not supported by the evidence on record whereas the trial Court's findings are not supported by the evidence. The legal position as enunciated in the aforesaid case-law is in favour of the petitioners.
10. For the aforesaid reasons this revision is accepted, judgment and decree dated 6-4-1985 of the learned Addl. District Judge-I, Peshawar is set aside and that of the learned Civil Judge, Peshawar dated 5-6-1984 is restored. The parties are, however, left to bear their own costs.