MUHAMMAD BASHIR KHAN JEHANGIRI, J.---Leave to appeal was granted in this case in order to examine the question whether the High A Court, in its provisional jurisdiction under section 115, C.P.C., was correct in undertaking its own appraisal of evidence in the face of concurrent conclusion of the Courts below, in the absence of a jurisdictional defect.
2. Sheikh Muhammad Bashir Ali and Khawaja Saeed-ud-Din, both since dead and represented by the appellants before us, had instituted a suit on 1-7-1968, seeking to pre-empt on the basis of superior right, the sale of land measuring 2 Canals and 14 Marla's bearing Khasra No,211/143/1, situate in Civil Station, Jhelum City vide Mutation No,45 sanctioned on 31-7-1967 in favors of Sufi Ghulam Mohiuddin respondent. The vendee-respondent had resisted the suit, inter alia, on the ground that suit land was not agricultural land and as such not subject to pre-emption. The suit was decreed on 19-2-077 by the learned Trial Judge holding that suit land being agricultural in nature was pre-emptible. The appeal by the respondent having been dismissed by the learned District Judge, Jhelum, on 15-10-1977, he came up in revision before the High Court which was accepted and finding that land in dispute was agricultural was interfered with and, in consequence, the judgments and decrees of the two Courts below were set aside on 27-4-1993.
3. On the question of perceptibility of the suit land the learned Trial Court found from Extract Exh. D-1 from Register Khasra Girdawari for the years 1942-46 that it was an agricultural land up to 2-4- 1943; thereafter it was recorded as Banjar Qadeem Store; that in the Extract Exh. D-III from Jamabandi for the year 1949-50, Khasra No,143 of which the disputed land formed part, was transferred as evacuee agricultural land under Displaced Persons (Land Settlement) Act, 1958; that had it been urban immovable property it would have been transferred through Permanent Transfer Deed; that the respondent had not brought on the record extract from the latest Khasra Girdawari to show that the land in dispute was not agricultural; that he had neither cross-examined the Patwari or Sheikh Muhammad Bashir Ali P.W.3 on the crucial point nor he had put any such suggestion to them; that the respondent had not uttered a single word as to whether the suit land was not agricultural in nature or that suit land had changed its character and had been absorbed in the Town. The learned District Judge affirmed these findings and also noticed that in the Jamabandi for the year 1949-50 Khasra No,143 was assessed to land revenue; that land in dispute as well as the remaining land in Khasra No,143 had not only been recorded as Banjar Qadeem but had also been assessed to land revenue which entries were repeated in the Jamabandi for the year 1964-65; that no further evidence had been led by the respondent to establish that the suit land had ceased to be agricultural in character till the filing of the suit in the year 1968.
4. The learned Judge in Chamber of the High Court while upsetting the concurrent findings of the two Courts below adopted the following reasonings:-- "Admittedly, the land in dispute is situate within the limits of Municipal Committee, Jhelum. It is situated adjacent to the District Courts and is in Mohallah Civil Station which forms part of the Jhelum City. As per entries in Jamabandi for the year 1959-60 Exh.D-2 and 1963-65 Exh. D-2, the land in dispute is recorded as Banjar Qadeem. There is no documentary evidence that land has ever been cultivated after 1959-60 and report of the Local Commissioner Exh. D-4 which is on record proves that the land in dispute has been used as godown for storage of timber. Some of the land is 'Darya Burd'. It has been held in cases of Lal and others v. Muhammad Sharif (PLD 1961 Lah.
47), Allah Bakhsh v. Ilahi Bakhsh and 3 others (PLD 1975 Lahore 359), Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others (PLD 1982 SC 159), Nasir Abbas v. Manzoor Haider Shah (PLD 1989 SC 568), Haji Muhammad Shafi v. Custodian, Evacuee Property, Muzaffarabad and 3 others (1989 CLC 222) and Muhammad Sadiq and another v. Abdul Aziz and another (1989 CLC 1387) that it is the over. All situation of the land which determines the exact nature of the land. It has been held in these cases that if the land is not under cultivation and is situate in urban area and the 'facilities which are available in the main city are also available on the land on nearby thereto, it shall be presumed that the land has admitted the character of urban immovable property. The two Courts below while deciding Issue No,1 have neither kept in view the law declared in the aforementioned cases nor the circumstances which have been enumerated above which go to establish that the land in dispute had attained character of 'urban immovable property' at the time of sale, merely because it is assessed to land revenue does not prove that the land is agricultural to character. As urban immovable land situated in the heart of the city even if assessed to land revenue cannot be held to be agricultural in character. In view of the above facts and circumstances and the law declared in the judgments referred to above, I hold that the suit land had attained the character of 'urban immovable property' at the time of sale, institution of the suit and thereafter hence is not pre-emptible."
5. Mr. Abid Hasan Minto, learned counsel for the appellants, contended that the learned Judge in Chamber of the. High Court while interfering with the question of fact whether the character of land was urban or agricultural had ignored the material documentary evidence and; therefore, the impugned judgment was not sustainable in law. He further pointed out that the revenue record produced at the trial by the respondent himself showed that the suit land was 'Banjar Qadeem' and thus it was agricultural land. According to him, the learned Judge has misread the report of the Local Commissioner to conclude that the suit land had lost its agricultural character. In support of these submissions, reliance was placed on: (1) Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another (PLD 1970 SC 139), (ii) Hafiz Hasan Muhammad and others v. Abdul Hamid and others (PLD 1982 SC 159) and (iii) Kanwal Nain and others v. Fateh Khan and others (PLD 1983 SC 53).
6. Mr. Bashir Ahmad Ansari, learned counsel for the respondent, on the other hand, referred to: (i)
Haji Mian Muhammad and another v. Ghulam Mustafa (PLD 1973 SC 394), (ii) Abdul Manzoor v.
Additional Commissioner and others (NLR 1980 UC 276), (iii) Mst. Amina Begum v. Sh. Muhammad Nazir and others (PLD 1985 SC 260) and (iv) an unreported recent judgment of this Court in C.As.
Nos.135 to 137 of 1992 and C.A. No,389 of 1992 titled Abdullah Javed Asmi v. Malik M. Waryam Khan, decided on 31-10-1995 and urged that in order to determine the nature of property, it is the use to which property is put at the time of institution of suit and not the hare fact that it was assessed to land revenue. According to him, that abundant evidence on record would show that the land was not agricultural in nature.
7. In the instant case, the onus to prove that land in dispute was not pre-emptible was rightly placed on the respondent. Both the learned trial Court as well as the learned Appellate Court had scrutinized the oral as well as documentary evidence to hold and for cogent reasons that the respondent has not been able to discharge his burden. The learned Judge in Chamber of the High Court has erred ,to hold that "admittedly the suit land is situate adjacent to the District Courts, Jhelum;" that "report Exh. D-4 of Local Commissioner which is on record shows that the land in dispute has been used as godown for storage of timber". Conversely, when the deceased/plaintiff No,1 was put such a suggestion, he not only denied it but also maintained that it was half a mile away. Likewise, the Local Commissioner had only referred to the entries of Jamabandis for the years 1959-60 and 1963-64 for the purpose of showing the area out of Khasra number in dispute that had submerged in River Jhelum. Both the Courts below, as noted earlier, held that the Register Khasra Girdawari for 1942-46 recorded a portion of land as Banjar Qadeem Store but thereafter it had recorded its classification as Banjar Qadeem which determined its character as agricultural land. Similarly, the respondent he neither cross-examined the deceased/plaintiff No,1 nor made to him any such suggestion that the disputed land was . Not agricultural. He had himself not asserted in his examination in chief that the disputed land was not agricultural. We, therefore, regret to note that the inferences drawn by the learned Judge are wholly unfounded and I c proceeded upon assumptions not supported by the evidence on record. In Allah Bakhsh v. Ilahi Bakhsh and others (PLD 1975 Lahore 359) it was held that whether land was agricultural or urban in character was question of law. We regret to observe that this view expressed is not sound. On the contrary, we are of the considered opinion that it is a mixed question of law and fact. This question had to be determined on the evidence adduced by the parties. As pointed out by this Court in Muhammad Umar Beg's and Knawel Nain's cases supra, provisional powers under section 115, C.P.C. Are primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction.
In Kanwal Nain's case it was, however, pointed out that ordinarily erroneous decisions of fact are not revisable, except in cases where decision is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom.
8. The above enunciation of the scope of the provisional power vesting in the High Court clearly shows that no interference was called for in this case and upsetting the conclusions of the Courts below virtually on the question of fact by way of re-examination of the evidence at provisional stage it has overstepped the limits or its jurisdiction.
9. As a sequel to what has been observed, this appeal is accepted, the impugned judgment is set aside and the judgment and decree of the learned trial Court duly affirmed by the Appellate Court are restored with costs.