' The relevant facts for the decision of this Regular Second Appeal are that the appellant purchased land measuring 46 Kanals, 13 Marlas situated in Chak No,203/RB, Tehsil and District Faisalabad, from one Ghulam Muhammad through registered sale-deed dated 28-3-1973. The respondent filed a suit for possession in exercise of superior right of pre-emption. The appellant contested the suit. The Trial Court accordingly framed following issues:--
(1) Whether the plaintiff has superior right of pre-emption qua the defendant?
(2) Whether the plaintiff has waived his right of pre-emption?
(3) Whether the ostensible sale price of Rs,100,000 (one lac) has been fixed in good faith or actually paid?
(4) What is the market value of the suit land?
(5) Whether the defendant has effected improvements, if so, in what amount and to what effect?
(6) Whether the defendant has purchased the suit land for industrial and residential purpose, if so, to what effect?
(7) Relief.
' The plaintiff-respondent examined Ali Ahmad as P.W.1 and himself appeared as P.W.2. The appellant, on the other hand, examined Ashiq Hussain Patwari as D.W.1, Muhammad Asharf as D.W.2, Muhammad Mumtaz, Revenue Patwari as D.W.3, Bulanda as D.W.4, Muhammad Irfan, Inspector, Central Excise as D.W.5 and Abdul Jabbar his attorney appeared as D.W.6. The learned Trial Court after hearing the arguments concluded that the suit land was no longer agricultural land, therefore, proceeded to dismiss the suit vide judgment and decree dated 16-11-1977, which was assailed by the respondent through an appeal before the learned District Judge, Faisalabad, who accepted the same vide judgment and decree dated 11-7-1987 which now has been assailed by the appellant-defendant through this appeal, which was admitted to hearing and notice was issued to the respondent, who has entered appearance through Mr. Abid Hassan Minto, Advocate, and contested the appeal.
2. Mr. S.M. Zafar, learned counsel for the appellant argued that the Trial Court correctly appreciated the evidence on record and came to the conclusion that the suit land ceased to be agricultural, therefore, sale was not pre-emptible. It is added that there is long chain of decisions of this Court that whether the sale is of agricultural land or not, depends on the facts of each case but certain guiding principles have been laid down, according to which, the inclusion of the area in the municipal limits, construction of houses, factories and roads around, the electrification and maintenance of streets and roads by the Municipal Corporation are few of the relevant factors. The learned counsel in this behalf has referred to Ishwar Das v. Duni Chand and others (27 PR 1907), Diwan Chan v. Nizam Din and others (AIR 1924 Lahore 662(1)), Emperor v. Gunga (AIR 1927 Lahore 799(1), Sheikh Abdul Rehman and another v. Khan Sahib Haji Rashid Ahmad and another (AIR 1937 Lahore 182), Lal and others v. Muhammad Sharif (PLD 1961 (W.P.) Lahore 47), Abdul Rahim and others v. Muhammad Akram (1982 CLC 1643), Asghar Ali v. Ahmad Naseem and another (1985 CLC 2616), Raja Khizer Hayat and others v. Saleh Muhammad (PLD 1986 Lah. 242), Pir Gul Badshah v.
Sardar Muhammad Nasir Khan (1989 CLC 225), Nasir Abbas v. Manzoor Haider Shah (PLD 1989 SC 568), Mehr Din v. Dr. Bashir Ahmad Khan and 2 others (1985 SCMR 1), Ehsan Elahi v. Akhtar Ali and others (1987 SCMR 692(2)) and Allah Bakhsh v. Ilahi Bakhsh and 3 others (PLD 1975 SC 359), which decision was upheld by the Hon'ble Supreme Court in the judgment reported as 1981 SCMR 723. It was added that there are only two judgments, which prima facie seem to hold contrary view, but are clearly distinguishable and, in fact, support the appellant. In this behalf, the learned counsel has referred to Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and .2 others (PLD 1982 SC 159) and Abdul Haq and 4 others v. Sardar Shah and others (1994 SCMR 1238). Mr. S.M. Zafar, learned counsel with reference to the cases of Sh. Abdul Rahman and others (supra), Lal and others (supra) and Allah Bakhsh (supra) argued that the land had acquired urban colour as is clear from the evidence of the appellant especially D.W.1 to D.W.3. The learned counsel in this behalf tabulated following factors:--
(i) it was included in the municipal limits in the year 1961;
(ii) the incoming goods pass through octroi post;
(iii) metalled roads, factories and houses have been constructed;
(iv) there is branch of Habib Bank Ltd.; and
(v) property tax has been assessed and is being collected for the properties in the area.
' It is added that according to section 56 of the Land Revenue Act the land revenue is not payable for the properties which are assessed to property tax. It is added that from the text of section 56 it is clear that it deals with the properties which have gone out of the pale of Land Revenue Act. It was argued that even on the suit land two halls, one store room and one room for Chowkidar have been constructed. The arguments were summed up with the submission that the respondent only produced Jamabandi for the year 1968-69 Exh. P/1 and not the latest to prove that the land at the time of the sale was agricultural land.
3. On the other hand, the learned counsel for the respondent argued that for the decision of this appeal we have to see the definitions of 'agricultural land', 'village immovable property' and 'urban immovable property'. It was added that the agricultural land has not been defined in the Punjab Pre-emption. Act, 1913 but the definition of the same as given in section 2(3) of Alienation of Land Act, 1900 was adopted while ' village immovable property' and 'urban immovable property' have been defined in section 3(2) and (3) respectively of the Punjab Pre-emption Act, 1913. It is clear from the last two definitions that all properties situated within the village other than agricultural land would be covered by the village immovable property while all the properties within the urban area other than agricultural land would be covered by the definition of urban immovable property. It was, therefore, argued that the agricultural land may be situated in a town or village. In support of this argument the learned counsel referred to the definition of the land' as contained in the Punjab Alienation of Land Act, 1900. It was, therefore, argued that mere inclusion of an area in a town is of no consequence as far as the status of agricultural land is concerned. The criteria according to the definition, would be whether the land is occupied for agricultured or allied purposes and its location is immaterial and any further enquiry would be neither necessary nor warranted. It is, therefore, maintained that the learned Trial Court after holding that the land was agricultural at the time of the sale, should have concluded the matter there and then and not proceeded to hold that the entire area has been converted into residential and industrial area. It is argued that this part of the findings were uncalled for and irrelevant for the purposes of the decision of the suit, therefore, the learned District Judge rightly set aside the same while accepting the appeal. It is added that on the point that the land was agricultural, the findings were confirmed. The learned counsel, thereafter, referred to the judgments relied on behalf of the appellant and argued that in none of the cases the agricultural land was held to be urban immovable property merely because of its location in a town. It was argued that a critical examination of all these cases would support the respondent rather than the appellant. It was added that in most of the cases the property involved was village immovable property, therefore, were not relevant to present controversy. It was maintained that it was clear from the perusal of these judgments that whenever question whether the subject-matter of the suit was agricultural land came up for consideration the same was decided as a question of fact and no other consideration. It was argued that the 'village immovable property' and ' agricultural land' have been grouped together in contra-distinction to 'urban immovable property' for the purposes of availability of right of pre-emption otherwise the agricultural land and village immovable property are two different entities. Therefore, it was concluded from this that 'village immovable property' and 'urban immovable property' do not include agricultural land. It was argued that it was a misconceived motion that once the agricultural land comes within the limits of a town and the industrial and building operations start in the vicinity, it automatically becomes urban immovable property like village immovable property. In the end it was argued that the appellant purchased yet another piece of land measuring 11 Kanals, 5 Marlas comprising of Killa Nos.5/1 and 8/2 situated in Square No,57 in Chak No,203/RB. The respondent filed a suit to pre-empt this sale. The same was resisted mainly on the ground that the suit land was not agricultural land, therefore the suit was not competent. The Trial Court recorded evidence and after hearing the arguments decreed the suit vide judgment dated 12-5-1982, which was challenged through an appeal before the First Appellate Court. The same was dismissed vide judgment and decree dated 23-6-1983 while Civil Revision was dismissed by this Court vide judgment dated 25-3-1984. The appellant, thereafter, filed C.P.S.L.A. In the Hon'ble Supreme Court, which was ultimately dismissed on 25-5-1988. It was, therefore, maintained that the land in the same square and Chak was held to be agricultural land and the decree in favour of the respondent was maintained up to Hon'ble Supreme Court. It was concluded on this analogy that there is nothing wrong with the concurrent finding of fact recorded by the two Courts below that the suit land was agricultural land at the time of its sale. The appeal is without any merit for this reason alone.
4. The learned counsel for the appellant while summing up the arguments submitted that the right of pre-emption exists in respect of agricultural land and village immovable property while custom has to be proved in respect of urban immovable property and the persons who can claim superior right of preemption, are different in both the sets of properties. In this behalf, reference is made to sections 6, 7, 15 and 16. It is argued that each type of the property can change its original character.
It is submitted that the cases of Ishwar Das, Sheikh Abdul Rehman and another, Abdul Rahim and others, Pir Gul Badshah, Mehr Din and Ehsan Elahi (supra), all pertained to agricultural land, therefore, there is no merit in the criticism of the learned counsel for the respondent that most of the judgments pertained to village immovable property. The learned counsel proceeded to refer to two more judgments reported as Mst. Zebun Nisa v. Khalid Rashid (1979 CLC 620) and Muhammad Sadiq and another v. Abdul Aziz and another (1990 CLC 1387). It was added that the conduct of the appellant was that he proceeded to construct factory on the suit land. From this its urban character was in full play. Next it was argued that no presumption of truth is attached to Khasra Girdawari relied on behalf of the plaintiff. The learned counsel in this behalf has referred to Bhagwan Das and others v. Shiv Dial others (AIR 1914 Lahore 436), Niaz Ahmad and others v. Mian Abdul Rahman and others (PLD 1961 (W.P.) Baghdad-ul-Jadid 1) and Muhammad Akram and 3 others v. The State (1977 SCMR 433 (b)).
5. I have given my anxious consideration to the arguments of the learned counsel for the parties, and gone through the record, relevant provisions of law and the precedents. It is worthwhile to refer to the precedents in order to clinch the legal controversy, therefore, now I proceed to refer to the case-law relied on behalf of the parties one by one:- 27 PR 1907: The plaintiff-appellant sought to pre-empt the land as agricultural land but on the basis of evidence on record it was held that the plaintiff did not have superior right and plaintiff failed to prove custom, therefore, the appeal was dismissed.
AIR 1927 Lah. 799(1) and AIR 1924 Lah. 662(1): In these cases the question upon which their Lordships were invited to express opinion, was whether the property in dispute is to be deemed village immovable property under the Pre-emption Act. Therefore, the same are hardly relevant to the present controversy.
AIR 1937 Lah.
18.2: Again a case of village immovable property wherein principle for deciding in what circumstances does a rural property lose its character with reference to 87 PR 1890. The same are as under: "In 87 PR 1890, in a case in which the land in suit was entered within the boundaries of Mauza Faizpur situate in the suburbs of Batala it was found that the property should be regarded as situated in a town. The principles deducible from these judgments are: (1) that the mere fact that a rural area is included within the limits of a town is not conclusive as to the urban character of the area in question; (2) that the rural area may lose its pre-existing character and be then absorbed in the urban area; (3) that the inclusion of a rural area within the Municipal limits of a town is an important factor to be considered in determining the character of the area in question; (4) that each case is to be judged on its own merits." PLD 1961 (W.P.) Lah. 47: There was again determination whether the suit property was village immovable property or urban immovable property. The suit pertained to site measuring 30 Marlas. The Trial Court dismissed the suit holding that it was no longer part of village immovable property and same finding was upheld and : PLD 1975 Lah. 359: The question was whether a site lies in a town or village. The appeal pertained to sale-deeds in respect of land measuring 10 Marlas each. In this case the question was whether the land in dispute is agricultural or urban immovable property. The pre-emptor based his claim that since land in dispute is described as agricultural land in the Revenue Records and in the headnotes of the sale-deeds but it was noted that Khasra Girdawari describes the portion of the land as Ghair Mumkin Abadi while the sale-deeds show that the alienations were of small pieces of land for construction purposes. It was also noted with reference to the case-law referred to above, that the Punjab Chief Court and subsequently Lahore High Court up to the second decade of twentieth century continued with consistent view that agricultural property remains as such irrespective of the fact that it falls within the municipal limits or some construction is raised in the vicinity. But the trend from third decade with the decision in the case of Sheikh Abdul Rehman and another underwent a radical change to the effect that if on the agricultural land building scheme is introduced and the municipal limits are extended then its status ceases to be agricultural land.
' 1982 CLC 1643: This was a suit in respect of land measuring 1 Kanal. The concurrent , finding of fact was that it was urban immovable property as it was mentioned as Ghair Mumkin and situated within municipal limits. The controversy was again whether it was village or urban immovable property. The revision was dismissed.
' 1985 CLC 2616: It was a suit in respect of piece of land measuring 2 Kanals, 2 Marlas in Gakhar Town. The issue was whether the suit land is not pre-emptible. Both the lower Courts concurrently found the suit against the plaintiff. In this case at the conclusion of the trial the learned Civil Judge visited the land in dispute and recorded in his notes that it has lost rural character and was absorbed in the town. It was held that this material was undoubtedly sufficient to conclude that the land is urban immovable property. The Court thereafter noted that the purpose of sale was construction, it being situated on the road-side and admittedly other buildings have been raised and that it was not under cultivation, was sufficient to confirm the finding of the Courts below.
' PLD 1986 Lah. 242 and AIR 1933 Lahore 212: The question for determination was whether the plaintiff was owner in estate. The land having changed its character as area built upon, therefore, he was not owner in the estate and could not maintain the suit. It was held with reference to Khasra Girdawari that the land had undergone change and was Sakni'. The same does not have much bearing on the present case.
' 1989 CLC 225: The appeal related to determination of character of the suit land. It was held that applying the test deducible from the aforesaid judicial authorities, it is clear that character of the land is to be assessed by the examination of facts of each case.
' 1981 SCMR 723: The petition against the judgment of this Court in PLD 1975 SC 359 was dismissed.
The petition was dismissed with the observations that area involved was only 10 Marlas (in each case) and High Court has noted after perusal that it was shown as Ghair Mumkin Abadi.
' PLD 1989 SC 568: The appellants had purchased Haveli built on 18 Marlas through four sale-deeds.
The respondent brother of the vendee filed suit for pre-emption in exercise of right of pre-emption.
The Hon'ble Supreme Court after referring to the case of Lal and others (PLD 1961 Lahore 47) concluded that taking an overall view of the evidence that has been produced by the parties we are satisfied that the finding of the Trial Court was correct that the disputed property is urban immovable property.
' 1987 SCMR 692: In this case the Trial Court held that the property has lost its character as agricultural land and was urban immovable property.
' 1985 SCMR 1: This was a review application. It was held that no fact was brought to the notice of the Court that the land in suit had continued to retain its character as agricultural land after 1956.
The land in dispute measured in all 3 Kanals, 4 Marlas and was sold on 28-11-1958. It was situated at Wazirabad Road and was surrounded by various houses, factories and petrol pumps. It was observed that the disputed plot of land was neither village immovable property nor agricultural land. It was situated in a thickly populated area. The plaintiff had admitted that the plot in dispute was not being cultivated and was surrounded by different houses. It was held that the plaintiff has failed to produce copies from Register Girdawari for ensuing harvests to establish that the land in suit was under cultivation on the date of sale. It was further observed that the Supreme Court in dismissing the appeal of the petitioner had rightly observed that according to the concurrent finding of fact the disputed land was urban immovable property and had ceased to be agricultural land since the year 1955-56.
' 1979 CLC 620: Land measuring 14 Marlas was sold through sale-deed showing houses on three sides of plot and street on one side. It has become part of town despite the fact that agricultural lands existed adjacent to such areas. It was held that there is nothing in the document to state that 14 Marlas of land in dispute was under cultivation.
' 1982 CLC 1700: Land measuring 3 Kanals was sold through registered sale-deed. The Courts below dismissed the suit for pre-emption after holding that the land was built upon and has lost its character as agricultural land. The appeal was accepted by this Court and it was held that in spite of the construction it cannot be stripped off its status as agricultural land especially when a piece measuring 15 Marlas was under garden. The appeal of the pre-emptor was accepted. The land was assessed to land revenue.
' 1994 SCMR 1238: It was a suit for possession of land measuring 12 Kanals. This Court with reference to the judgment of Nazir Abbas noted seven factors for deciding the character of the property. The appeal was dismissed by the Hon'ble Supreme Court.
' AIR 1939 Lahore 554: Land not used for agricultural purposes thereto for over 20 years was held not agricultural land.
' PLD 1982 SC 159: The immovable property either village or urban does not include agricultural land.
Agricultural land merely on account of its being located in the urban area could be treated as urban immovable property. It was noted that when Khasra Girdawari described portion of land as Ghair Mumkin Abadi and alienation had taken place on small pieces for construction purposes the land became immovable property. While in the case it was held that there was no evidence apart from notification to show that there are other accompanying circumstances to justify a view that the property has lost its agricultural character and acquired the status of urban immovable property within the meaning of section 3 of the Act. The appeal was dismissed.
' 1993 SCMR 1308: Village immovable property--Land in question, not being used for agricultural purposes would be treated as village immovable property and thus pre-emptible. The brick kiln existing on the site had stopped operation but land remained village immovable property.
' 1993 SCMR 1477: Agricultural land and urban immovable property-- Iimmovable property either village or urban but does not include agricultural land. When on the date of sale 'it was not proved that the suit land was agricultural land, suit dismissed. Two plots measuring 3 Kanals, 2 Marlas were sold through registered sale-deed. The property was treated as urban immovable property on the basis of the evidence.
6. Before proceedings any further with the discussion it is necessary to refer to the definitions of ' village immovable property and "urban immovable property". These have been defined in section 3 of the Punjab Pre-emption Act, 1913 as under:- "...(2) 'village immovable property' shall mean immovable property within the limits of a village, other than agricultural land;
(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 so found by the Courts; ..."
'It is clear from the above two definitions that the agricultural land could be located in the village as well as in town while the agricultural land has not been defined in the Act, 1913 but its definition as contained in the Punjab Alienation Act, 1900 as amended by Act I of 1907 was adopted. The relevant portion of the same reads as under:-- "... (3) the expression 'land' 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 purposes subservient to agriculture or for pasture. And includes---"
This way the criteria is only that it is not occupied as site of any building in a _town or village and is occupied or let for agricultural purposes. Therefore, question whether it is agricultural land or not is a factual controversy and golden rule as clearly laid in most of the decisions, noted above, is that it should be decided in accordance with the evidence on record. In the present case the learned Trial Court after referring the evidence of the parties concluded as under:-- "* No doubt at the time of sale the land in dispute held the agricultural character and it was being cultivated*."
' But thereafter proceeded to raise another question as to whether after inclusion of Chak No,203 into municipal limits, application of all municipal taxes including property tax, connection of the Chak with metalled roads, installation of factories adjacent and around the land in question, construction of shops, houses, banks etc., the area still retained its agricultural character or area in question had taken the colour ofurban immovable property. This was entirely irrelevant because it is the status of the land and not the area, in which it is situated, which determined its status for the purposes of suit under section 15 of the Punjab Pre-emption Act. It is clear from the definition of the land that reference is to the land itself and not the surroundings.
7. The learned District Judge upheld the first part of the findings on fact and observe as under:-- "***The real question, as seen above, was whether the land in suit ,was at the time of its sale agricultural land or urban immovable property and as it was admittedly agricultural land at that time, there was no question of its being treated as urban immovable property."
' This way it is a case of concurrent finding of fact recorded by the two Courts below and the appellant has failed to make out a case for interference in second appeal. There is nothing wrong with the concurrent findings. The same is fully supported by the record. It is clear from the sale- deed Exh. P-4 and particularly description of the 'land' and clause pertaining to the possession that it was agricultural land. The same are reproduced as under:-- {{URDU TEXT}} The plaintiff has proved the land to be agricultural besides other evidence by production of Khasra Girdawaris and sale-deed Exh. P-2 dated 22-2-1973. I am conscious that the same are not admissible as such. But in the case in hand the appellant failed to controvert the same; rather, as already noted, he accepted the position. The contents of the sale-deed fully corroborate the entries in the Khasra Girdawari. The cases of Raja Khizar Hayat (supra) and Muhammad Akram (supra) are clearly distinguishable. I am fortified in my view by the judgment in the case reported as Niaz Ahmad and others v. Mian Abdul Rahman (PLD 1961 BJ 1).
8. The appellant purchased yet another piece of land in the same square for establishment of industry. The respondent filed a suit for pre-emption. The appellant resisted it on the same grounds but it was decreed by the Trial Court vide judgment dated 12-5-1982, which was assailed through an appeal before the First Appellate Court. The appeal was dismissed by the learned Additional District Judge, Faisalabad vide judgment and decree dated 23-6-1983, Civil Revision No,1183 of 1983 filed by the appellant was dismissed by this Court vide judgment dated 25-3-1984. The appellant, thereafter, filed C.P. No,306-84 in the Hon'ble Supreme Court, which was dismissed vide judgment dated 25-5-1988. The land was held to be agricultural and sale pre-emptible. This directly lends support to the findings recorded by the learned District Judge, Ch. Fazal Karim, (as his Lordship then was). I have also noted that almost all the precedents, noted above, were relied on behalf of the appellant.
9. It is difficult to accept the argument on behalf of the appellant that the moment vicinity assumes urban colour the agricultural land becomes 'urban immovable property' because it is not only against the plain wording of the definition of the land but also against the spirit of the law. It ignores the basic fact that agricultural land could be very well-situated in a town. The agricultural land so long as it is occupied for agricultural or allied purposes, retained its status as agricultural land for the purposes of Punjab Pre-emption Act irrespective of its location, therefore, its inclusion in the municipal limits is of no significance. It is a matter of common knowledge that land alongwith Highways is acquired for industry, residential and commercial buildings but the adjoining lands in its rare remain under plough. Therefore, construction of some factories, houses, shops etc. Would not automatically convert the agricultural land into urban immovable property.
The other relevant factors would be--
(i) description of the land in the sale-deed;
(ii) size of the land subject-matter of the sale;
(iii) purpose for which it was acquired, and
(iv) its location.
' It is made clear, at the cost of the repetition, that these are only relevant factors and not the determining factors. There seems to be some amount of confusion, which has arisen on account of non-availability of the detailed facts in some of the earlier judgments but it is clear from most of the above precedents and the provisions of Punjab Pre-emption Act and Alienation Act that agricultural land so long as it remained occupied for agricultural purposes was to be treated as agricultural land irrespective of its location in town or village. If it is abandoned as agricultural land then question would be whether it is village immovable property or urban immovable property. In my humble view it is at that juncture that the colour of the locality would be relevant and not otherwise.
10. The upshot of the above discussion is that there is no merit in this appeal. The same is dismissed with costs.