' MAMOON KAZI, J.---This appeal is directed against the judgment of the Peshawar High Court, dated 2-2-1994 whereby, revision filed by the respondents was allowed and the judgment of the learned Additional District Judge, Peshawar dated 6-4-1985 was set aside and the judgment of the learned Civil Judge, Peshawar, dated 5-6-1984, in favor of the respondents, was upheld.
2. The brief facts of the case are that the land in dispute was purchased by defendants/respondents Nos.1 and 2 vide Mutation No,1777 dated 4-11-1978 for Rs,1,15500. The appellants/plaintiffs brought a suit against the respondents in the Court of Civil Judge; Peshawar, challenging the aforesaid sale upon their superior right of pre-emption based on ownership contiguity etc.
3. The said suit was resisted by the respondents upon various pleas, the main objection being that, the disputed land was situated within the Municipal area of Peshawar which was surrounded by residential plots and bungalows and, therefore, it had ceased to be an agricultural land and consequently, the appellants had also ceased to be co-sharers in the land in dispute. .
4. The respondents' pleas prevailed with the Trial Court and consequently the appellants' suit was dismissed vide judgment dated 5-6-1984. However, on appeal the said judgment was reversed as the Appellate Court found that the appellants were co-sharers in the disputed land and consequently their suit was decreed on payment of Rs,1,15500. The respondents filed a revision petition before the Peshawar High Court which was accepted by the learned Judge in Chambers vide his judgment dated 2-2-1994 and the judgment passed by the learned Appellate Court was reversed as pointed out earlier.
5. Both the learned High Court as well as the learned Civil Court were of the view that although, according to the evidence of P.W.1 Shamsur Rehman, Patwari, the entries in the Jamabandi up to years 1970-71 were correct but the land had subsequently been amalgamated with Gulberg residential colony which consisted of bungalows and houses and thus the land had adopted the colour of urban immovable property and consequently the provisions of the pre-emption law were not applicable to such land.
6. Learned counsel for the appellants has contended that firstly there was clear evidence to support the fact that, the land had been purchased as undivided share in the Khata and the land was shown as Nehri Awal in the mutation record which indicated that the land was subject to the provisions of pre-emption law as an agricultural land. In any case, according to the learned counsel, the land in question was subject to the provisions of the pre-emption law notwithstanding the fact that it was regarded as urban immovable property by the High Court.
7. The judgment of the, learned Judge in Chambers shows that he had mainly placed reliance upon the following judgments: Allah Bakhsh v. Elahi Bakhsh (PLD 1975 Lah. 359), Raja Khizar Hayat v.
Saleh Muhammad (PLD 1986 Lah. 242), Dr Abdul Jamil v. Malik Nazar Mohyuddin (PLD 1988 Peshawar 13) and Elahi Bakhsh and others v. Allah Bakhsh and others 1982 SCMR 457. However, the first three judgments are based upon the interpretation of law of pre-emption as applicable to the Province of the Punjab. The fourth judgment which is of this Court, referred to by the learned Judge in Chambers, could not be called in aid since the question decided in the said judgment was not whether any person was entitled to right of pre-emption under the relevant law, but whether the disputed land was an agricultural land or an urban immovable property. This question being a pure question of fact and the finding of fact arrived at by the High Court was not found to be suffering from any.
8. Infirmity, leave was refused by this Court It may, however, be pointed out that, the provisions of the Punjab Preemption Act, 1913 and the N.-W.F.P. Pre-emption Act, 1950 which are applicable in the present case, are not similar in all respects. Section 3 Of the Punjab Pre-emption Act, 1913 defines "urban immovable property" to mean as.
9. "Immovable property within the limits of a town, other than agricultural land". The definition further indicates that for the purpose 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". Although, a similar definition of the said expression can be found in section 3 of the N.-W.F.P. Pre-emption Act, 1950, but as has been further provided in the said definition, for the purposes of the said Act "a specified place shall be deemed to be a town"-- "(a) 'If so declared by the Provincial Government by Notification in the official Gazette; or
(b) if so found by the Courts."
' The expression "Agricultural Land" has also been defined in the two Acts to mean as "land as defined in the Punjab Alienation of Land Act, 1900 (as amended by Act I of 1907), but shall not include rights of a mortgagee, us ufructuary or otherwise in such land". Although, no major distinction can be found in the definitions referred to above, but the question as to persons in whom right of pre-emption vests is governed in the Punjab Pre-emption Act by sections 15 and 16 which separately refer to rights of such persons in respect of agricultural property or village immovable property and urban immovable property. However, section 12 of the N.-W.F.P. Pre- emption Act has done away with such distinction and similar rights of pre-emption exist for persons in respect of agricultural land, village immovable property or urban immovable property.
Section 12 provides as under:-- "12. Persons entitled to pre-empt. --The right of pre-emption in respect of agricultural land, village immovable property and urban immovable property shall vest:- ' firstly, in the co-sharers in such land or property, if any; ' secondly (in a participator in amenities, appendages such as right of way or a right to discharge water); ' thirdly, in owners of contiguous property, if any; ' fourthly, in a landlord when the sale is by an occupancy tenant of his right in tenancy."
9. Learned counsel for the appellants has invited our attention to Mutation Entry No, 1777 which, no doubt, indicates that initially, at the time of its transfer to the respondents the disputed land was an agricultural land, but both the learned trial Court as well as the learned Judge in Chambers while relying upon the statement of the Patwari (P.W.1) before the trial Court have held that, subsequently, the land had changed its character from agricultural to urban immovable property.
However, even if these findings are upheld, it still remains to be determined, whether in view of the provisions of section 12 of the N.-W.F.P. Pre-emption Act, the suit filed by the appellants was still maintainable. Although, the definition of "urban immovable property" indicates that agricultural land even if situated within the limits of a town cannot be characterized as such, however, section 12, as has been reproduced earlier, shows that right of pre-emption was available not only in respect of agricultural land or village immovable property but the same was also available in respect of urban immovable property, provided the conditions provided for in the said section are satisfied. It means that, if the appellants are co-sharer in the property, or are participators in amenities or appendages, or are owners of contiguous property, etc., right of pre-emption may be claimed by them in respect of the property, notwithstanding the fact that it is urban immovable property. There appears to be no controversy in regard to the fact that the suit was filed upon the first three grounds referred to above. Therefore, notwithstanding the fact that the learned Judge in Chambers has arrived at the conclusion that the property in question had not retained its character as an agricultural land, the suit for pre-emption filed by the appellants would still be maintainable. The learned Judge, it appears, placed reliance upon the said judgments in the case of Allah Bakhsh and Raja Khizar Hayat without taking into consideration the provisions of section 12 of the N.-W.F.P. Pre-emption Act. As has been pointed out earlier, a clear distinction can be found in the provisions of the said two Acts relating to right of a person to claim right of preemption vis-a- vis urban immovable property. According to the law as applicable in the Punjab, right of pre- emption in respect of agricultural land and village immovable Property is governed by section 15 of the Punjab Pre-emption Act whereas such right in respect of urban immovable property is to be governed by section 16 of the said Act which provides for conditions altogether different from those in the former, to make a person entitled to such right. No doubt, reference has been made by the learned Judge in chambers to the case of Dr Abdul Jamil which was decided in the Peshawar High Court but, perusal of the judgment indicates that even the learned Judge who decided the said case had failed to mark the distinction between the provisions of the two enactments and his judgment is purely based upon the observations made in the two judgments of the Lahore High Court.
We are consequently of the view that the learned Judge in Chambers has committed an obvious error by not referring to the provisions of the N.-W.F.P. Pre-emption Act, 1950.