' The relevant facts for the decision of this second appeal are that the appellants proceeded to purchase 8 plots of land in all measuring 5 Kanals 17 Marlas situated in Shorkot City through registered sale-deed dated 7th August, 1973 placed on record as Exh. D1 while copy as Exh. P1. The respondent filed a suit to pre-empt this sale. He claimed superior right being tenant of the land and Khewatdar. The appellants contested the suit. The suit remained pending on the file of Collector and ultimately it was decided that the respondent has failed to prove that he was tenant of the land, therefore, plaint was returned to the Civil Court. The learned Civil Judge seized of the matter then framed following issues:-- "(1) Whether the plaintiff has no locus standi to bring the present suit?
(2) Whether the plaintiff's suit is time-barred?
(3) Whether the suit land has been purchased for the residential purposes, if so , with what effect?
(4) Whether the defendant-vendees have constructed the house on the suit land, if so, with what costs and to what extent?
(5) Whether the plaintiff is estopped to bring the present suit by his own conduct?
(6) Whether the plaintiff has a superior right against the defendants?
(7) Whether the ostensible sale price Rs,6,000 was fixed in good faith and was actually paid at the time of its sale, if not, what was the market value of the suit land at the time of its sale?
(7-A) Whether the plaint is deficiently stamped, if so, its effect?
(7-B) Whether the suit land is exempt from pre-emption? OPD.
(8) Relief."
' Thereafter the Trial Court recorded the evidence of the parties and after hearing arguments dismissed the suit vide judgment and decree dated 18-1-1982, which was assailed through an appeal before the District Judge, Jhang who accepted the same vide judgment and decree dated 5-11-1983. The result was that the suit of the respondent was decreed. The defendants thereafter filed the present appeal, which was admitted to hearing and notice was issued, to the respondent, who has appeared and contested the appeal. It was during the pendency of this appeal that the respondent died and his heirs were impleaded through the application (C.M. 1-C/94) as respondents.
2. The learned counsel for the appellants argued that the certificate Exh.P4 is a document of highly doubtful nature. In this behalf, it is added that according to the mutation Exh. P2 Bahadar father of the respondent-Waryam died about 12 years back. This does not tally with the certificate Exh. P4.
The next argument is that the plaintiff filed the suit with Rs,7 court-fee. It is aded that he was directed to file the statement of net profits and make up the deficiency in the court-fee but he did not care to comply with the direction, therefore, suit was liable to be dismissed. The other submission is that the land was not agricultural but it was building site. It was sold as such and this fact is also proved by the copies of Khasra Girdawari Exhs. P5 and P7 produced by the respondent himself. While respondent claimed superior right as agricultural land, therefore, the suit was liable to be dismissed. The learned counsel, in this behalf, has referred to Shah Muhammad v. Mst. Pairi and others (AIR 1936 Lahore 202 = 38 PR 664).
3. On the other hand, the learned counsel for the legal heirs of the respondent argued that the suit land was agricultural land at the time of the sale. It is added that the status of land for the purpose of suit for pre-emption is to be seen on the date of sale. It is submitted that the construction, if any, was made by the appellants during the pendency of the suit, therefore, of no legal consequence. In this behalf, the learned counsel has relied on Jhabban Lal and another v. Muhammad Umar and another (AIR 1925 Lahore 544) and judgment in RSA No,908/71, decided on 30-1-1988. It is added that the deficiency in the court-fee was made good in compliance of the direction of the learned District Judge.
4. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record and precedent cases. The only question which needs serious consideration is whether the suit land was sold as building site or agricultural land. It is clear from the perusal of the sale-deed Exh. D1 that the land is situated within Shorkot City. It is also evident from the recitals of the sale-deed that the appellants purchased plots from 4 Marlas to 2 Kanals for construction purposes. Quantum of the land purchased by each of appellant goes a long way to show that neither it was agricultural land nor it was meant for agriculture purposes. The Pre- emption Act of 1913 dealt with following kinds of immovable properties, which terms have been defined in section 3:--
(1) ' agricultural land' shall mean land as defined in the Punjab Alienation of Land Act, 1900 (as amended by Act I of 1907), but shall not include the rights of a mortgage whether usufructuary or not, in such land;
(2) 'urban 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 used 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;"
' The exercise of right of pre-emption in respect of agricultural land and village immovable property was governed by section 15 of the said Act while section 16 of the Act dealt with the exercise of right of pre-emption in respect of urban immovable property'. It is clear from the scheme of the Act that the Legislature intended to deal with these properties separately on different footings. It was held in the case of Mst. Pairi and others (supra) as under:- .... As soon as agricultural land is converted into buildings sites, whether in a village or in a town, its owner, so to say, walks out of the estate and ceases to have any connection with it any longer. He establishes a new character for his possession and is, therefore, to be treated on that basis. To hold otherwise will be to go against the spirit of the Pre-emption Act.
' In these circumstances, we hold that the plaintiff being an owner of urban immovable property was not entitled to pre-empt the sale of agricultural land within the limits of the Multan Town...."
' It is, therefore, clear that the owner ceased to be owner in the estate because land owned by him was no longer agricultural land and had become 'urban immovable property'. In this behalf, reference can also be made to the judgments reported as Muhammad Hussain v. Muhammad Din and others (1989 MLD 964), Raja Khizar Hayat and others v. Saleh Muhammad (PLD 1986 Lahore 242), Nawab Din v. Mst. Hussain Bibi and others (PLD 1956 Lahore 214), Rahim Bakhsh v. Wahid Bakhsh (PLD 1979 Lahore 544) and Allah Bakhsh v. Ilahi Bakhsh and 3 others (PLD 1975 Lahore 359).
In the case of Raja Khizar Hayat and others (supra), the plaintiff sought to pre-empt the sale in favour of the defendant. The suit was ultimately dismissed with the findings that since there is no reliable evidence on record to show that any part of the land on the basis of which plaintiff has claimed superior right of pre-emption was being used for agricultural basis. In other words, when land ceased to be agricultural land the pre-emptor ceased to be owner in the estate and conversely speaking, when land sought to be pre-empted lost its character as agricultural land then it cannot be pre-empted as such.
5. The learned counsel for the L.Rs of respondent argued that even if the land is a building site, it was pre-emptible. There is no cavil with the legal proposition. But unfortunately the plaintiff had filed the suit to pre-empt the sale treating the suit land as agricultural land and not urban immovable property and for that reason the judgment in RSA No,908/71 is not relevant because in that case sale was sought to be pre-empted as building site. The Courts below, therefore, failed to decide Issue No,3 properly. The land was urban immovable property. It was sold as building site, therefore, the suit as laid and framed was not competent and was liable to be dismissed.
6. The upshot of the above discussion is that the judgment and decree of the First Appellate Court dated 5-11-1983 is set aside by accepting this appeal. The .Result is that the suit of the respondent is dismissed with no order as to costs.