This civil revision petition is directed against the judgment and decree dated 6-3-1984 passed by an Additional District Judge, Bahawalnagar, whereby the appeal filed by respondent Mst. Amiran Begum was accepted and her suit for possession of land by pre-emption decreed.
2. Mst. Amiran Begum instituted a civil suit for recovery of possession of land measuring 1 Kanal, 12 Marlas being 32/34 share of 1 Kanal, 14 Marlas from Killa No,15 rectangle No,10/2 Khatoni No,414, Khata No,45 according to record of rights relating to year 1975-76 and bounded by public street on north as well as south, by a plot owned by Mst. Waziran Begum on east and by Haroonabad road on west on payment of Rs,2,000. It was averred in the plaint that Mst. Waziran Begum was owner of aforementioned property which was sold to vendees/defendants vide sale-deed dated 13-10-1979 for an ostensible price of Rs,9.000, that no notice under section 19 of the Punjab Pre-emption Act, 1913, was given by the vendor and that the property was sold for a sum of Rs,2,000 and that the plaintiff being real sister of the vendor had a superior right of pre-emption and decree was prayed for possession of the land in question. The suit was resisted. The defendants submitted written statement and took the stand that the suit land was situated within the limits of Municipal Committee, Bahawalnagar, and was not pre-emptible, that Mst. Amiran Begum/plaintiff and Mst.
Waziran Begum/vendor had constituted Muhammad Ramzan as their attorney and land was sold by said Muhammad Ramzan which meant that Mst. Amiran knew about the transaction and that, at any rate, she had waived her rights in the suit property. It was further averred that plaintiff had not filed the suit herself and thumb-impression on the plaint was fictitious and same had been put by Muhammad Ramzan her attorney in order to blackmail the defendants. It was further stated that defendants had spent a sum of Rs,10,000 on improvements and property was purchased for residential purposes.
3. Pleadings of the parties were reduced into the following issues:-
(1) Whether the present suit had been filed under the forged thumb-impression of the lady- plaintiff, if so, to what effect ? OPD
(2) Whether the suit land is an urban immovable property ? OPD
(3) If issue No,2 is proved, in affirmative, whether the custom of preemption prevails in the locality wherein the suit property is located, since from the enforcement of the Punjab Pre-emption Act ?
OPP
(4) Whether the plaintiff has superior right of pre-emption over the vendee-defendants ? OPP
(5) Whether the vendees-defendants have purchased the suit land for a consideration of Rs,16,000 but the lesser amount was incorporated in the sale deed in order to avoid the capital gains tax ?
OPP
(6) If issue No,5 is not proved, what was the market value of the suit land at the time of its sale? OPP
(7) Whether the vendee-defendants have incurred the incidental charges of the sale? If so, what amount was spent by them and to what effect ? OPD
(8) Whether .the vendees-defendants have made any improvements over the suit land? If so, what amount was spent by them and to what effect? OPD
(9) Whether the vendees-defendants are entitled to special costs under section 35-A, C.P.C.? If so, to what amount? OPD
(10) Relief.
4. The plaintiff examined Muhammad Ali as P.W.1, Muhammad Akhtar as P.W.2 and Zulfiqar as P.W.3.
The plaintiff herself did not enter the witness-box. The plaintiff also tendered in evidence sale-deed dated 1-8-1973 Exh.P-1, Mutation No,622, dated 30-7-1977 as Exh.P-2, extract of record of rights relating to year 1979-80 as Exh.P-3, extract of record of rights showing the land to be 'Ghair Mumkin Bhatta' as Exh. P-4, Mutation No,1482 as Exh.P-5, Mutation No,1091 as Exh. P-6, copy of judgment/decree dated 2-12-1978 in civil Suit No,329 of 1978 titled Amiran Begum etc. v. Ahmad Ali as Exh. P-7, crop survey as Exh. P-8, sale-deed dated 13-10-1979 as Exh. P-9, pedigree-table showing the vendor and the plaintiff to be sisters as Exh. P-10, copy of mutation No,1092 as Exh. P-11, and copy of another judgment on Exh .P-12.
5. The defendants, on the other hand, examined Muhammad Ishaq Patwari of Municipal Committee, Bahawalnagar, who stated that rectangle No,10-/2 was included within the limits of Municipal Committee vide a notification dated 13-9-1976 which was tendered as Exh. D-1.
According to witness seven rectangles of village Islampura were included in Municipal Committee, Bahawalnagar. He also stated the land from villages, Amar Singh, Jatowala, Kothianwala, Hussainabad and Mandi Bahawalnagar were also included within the Municipal limits. Shah Irfan, Advocate, appeared as D.W.2, while Dr. Sher Muhammad appeared as DW-3.
6. After conclusion of hearing of the suit, learned first Court decided issue No,1 in favour of the plaintiff. Under issue No,2, it was held that suit property was urban immovable property and not agricultural land and issue was answered in the affirmative. Issue No,3 was answered in the negative. Issue No,4 was also decided in the negative. Under issue No,5, it was held that land was sold for a sum of Rs,9,000. No finding was given under issue No,6. Under issue No,7, it was held that a sum of Rs,1,080 was incurred additionally as incidental charges by the defendants. Under issue No,8, it was held that defendants were not entitled to receive compensation for improvements.
Under issue No,9, it was held that defendants were not entitled to special costs. In view of the aforementioned findings, learned first Court by judgment/decree dated 3-3-1983 proceeded to dismiss the suit.
7. The plaintiff preferred appeal against the judgment/decree of the first Court and the learned Appellate Court reversed the findings on issue No,2 and by accepting the appeal, decreed the suit of the plaintiff subject to payment of Rs,9,000 as pre-emption money and Rs,1,080 as incidental charges.
8. Aggrieved of the appellate judgment, present petition was submitted. It was admitted to hearing on 19-9-1984. Learned counsel for parties have been heard in the matter and record seen.
9. Learned counsel for the petitioner/defendant submitted that it was proved during the hearing of the suit that the suit property had lost the character of agricultural land, it was included in the limits of Municipal Committee, Bahawalnagar and that there were residential colonies around the place where the suit property was situated and that the suit property was sold as a plot of land for residential purposes and there was nothing on record which showed that the suit property was agricultural and that the learned lower Appellate Court had wrongly reversed the findings of the learned first Court and had decreed the suit without any justification. It was contended that even according to depositions of P.Ws.1 and 2, the plaintiffs' own witnesses there were residential houses around the place where the suit land was located and the documentary evidence tendered by the plaintiff, particularly Exh. P-8 showed that the land was no longer in cultivation prior to sale of the same. It was submitted that appellate judgment/decree was based on misreading as well as non- reading of record and as such, the same was liable to be set aside. Reliance was placed on Allah Bakhsh v. Ilahi Bakhsh and 3 others (PLD 1975 Lahore 359) and Muhammad Sadiq and another v.
Abdul Aziz and another (1990 CLC 1387). Learned counsel for the respondent/plaintiff, on the other hand, submitted that the suit land was situated in village Islampura and evidence on record showed that there was Lambardar as well as a Chowkidar and residents of the village engaged in agricultural pursuits and the suit land which was situated beyond octroi post of Haroonabad Road was agricultural land and was pre-emptible. It was submitted that the learned lower Appellate Court had applied correct law to the facts of the case and had decreed the suit rightly. It was submitted that sections 3,6,7 and 8 of the Punjab Pre-emption Act, 1913, are to be read together and that no notification under section 8 (*the Punjab Pre-emption Act, 1913, was issued by the Board of Revenue and the suit land continued to be pre-emptible. Reliance was placed on Hashmat Ali and others v. Munshi Khan (1989 SCMR 967), Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others (PLD 1982 SC 159) and Lal and others v. Muhammad Sharif (PLD 1961 (W.P.) Lahore 47).
10. Learned counsel for the parties have been heard at length and record seen with their assistance.
11. The law on the subject is settled for almost half a century now. The question whether a property/land for which right of pre-emption is being claimed is urban immovable property can be determined with reference to certain factors which have been enumerated in various judgments. In AIR 1973 Lahore 182, it was observed that the inclusion of rural area within the municipal limits of a town was an important factor to be considered in determining the character of the area in question. In Lal's case (PLD 1961 (W.P.) Lahore 47) (referred to by the respondent), it was held that overall picture should be had to conclude whether the locality retained its rural character and had been absorbed in the town. It was observed that where the site in dispute was surrounded by roads or buildings constructed by Government or occupied by Government employees and other buildings in occupation of artisans, there being metalled roads in the area which were electrified, electricity posts having been fixed in the street, the District Courts was at a distance of 3 furlongs from the site, the site was no longer a part of village immovable property but had become a suburb of the town. In PLD 1975 Lahore 359, it was held at page 362 that Khasra Girdawari described portion of land as Ghair Mumkin Abadi and alienation of small pieces of land was made for construction purpose, the property was urban property and that property having acquired colour of urban property, onus, in such circumstances, lay on pre-emptors to show existence of custom for pre-emption of such property. A considerable case law on the subject was surveyed in this case. In 1990 CLC 1387, essentials for determining the character of land were described as to whether property/land in question was situated on a Pucca road and sometime after the sale, was included in municipal limits of city, such fact, it was held, would go a long way to show that entire locality, in which such land was situated, was fast assuming the character of urban immovable property. The material on record has been examined in the light of aforementioned authorities.
12. The suit land was sold in the form of a plot. It was bounded on three sides by public streets including metalled road and on one side it was bounded by another plot. The land constituted part of rectangle No,10/2 which was included within the municipal limits vide notification dated 13-9- 1974 Exh.D-1. Exh. P-1 submitted by plaintiff showed that the land was 'Banjar Kham' since after 1977 and was not in cultivation. The sale in this case took place in 1979 and prior to that, according to Exhs. P-3 and P-4, the land was 'Ghair Mumkin Bhatta. The evidence on record excepting bald statements of P. Ws. that it was agricultural land did not warrant such a conclusion to be drawn.
The witnesses, no doubt, stated that village Islampura had a Lambardar and a Chowkidar and that residents were agriculturists but it would be seen that only seven rectangles of land from this village were included in the municipal limits and, therefore, the existence of a Lambardar and a Chowkidar did not show that suit land still continued to be agricultural land. The learned first Court after evaluating the entire material on record and by referring to case law on the subject had concluded that the suit land had assumed the character of urban immovable property. The finding was reversed only on the ground that village Islampura was an agricultural village but this aspect was ignored that major part of the village was not included in the Municipal Committee, Bahawalnagar, and no evidence was led at the trial by the plaintiff showing that the suit land was agricultural and at the time of sale or at the time of filing of the suit. The plaintiff's own witness, particularly Muhammad Akhtar P.W.2 had admitted that Madni Colony was located close to the suit land, the land in question was sold as a plot and according to deposition of Shah Wan, Advocate, it was originally seven feet deep pit but was filled up. This evidence, if examined in the light of Exhs. P-3 and P-4, would lead to the conclusion that a brick-kiln was in existence over this land previously but this land was now being utilised for residential purposes and was sold for the same purpose. Learned counsel for the respondents had relied upon PLD 1961 Lahore 47 to canvass that the land still remained agricultural in character. The precedent cited did not advance his case.
PLD 1982 SC 159 relied upon by the plaintiff had cited with the approval PLD 1975 Lahore 359 and law laid down therein was upheld. 1989 SCMR 967 (Hashmat Ali and others v. Munshi Khan) is a leave granting order and does not assist the respondent in any manner.
13. After having analysed the material on record critically, it is held that the learned First Appellate Court had reversed the finding of the learned first Court on issue No,2 on erroneous ground and by misreading the evidence on record. The land in question had assumed the character of urban immovable property prior to sale of the same and, as such, was not pre-emptible. The civil revision petition, in the circumstances, is allowed and the judgment/decree dated 6-3-1984 passed by the Additional District Judge, Bahawalnagar, set aside and that of the Civil Judge dated 3-3-1983 restored. The parties to bear their own costs.