SAVED NAJAM-UL-HASSAN KAZMI, J. -- This judgment will decide C.R. No. 852/83, C.R. No. 1838/83 and R.S.A. No. 154/83 as common questions of law are arising therein.
2. In C.R. No. 852/83, land measuring 11 kanals, 14 marlas situated in village Lurka, Tehsil Nankana Sahib, District Sheikhupura was purchased by Muhammad Zahoor and Muhammad Farooq, respondents herein, vide sale-deed 14.6.1979, in consideration of Rs. 25,000/-. Muhammad Afzal Khan, petitioner, filed a suit for pre-emption to pre-empt this sale, on the ground of being owner of the estate. After issues and evidence, the learned Civil Judge decreed the suit on 21.3.1982 but decree was set aside in appeal by the learned Additional District Judge, Sheikhupura on 22.2.1983, on the ground that the petitioner had no superior right of pre-emption as the land owned by him was not assessed to land revenue and thus the petitioner was excluded from the definition of owner of estate. In C.R. No. 1838/83 land measuring 11 kanals, 4 marlas was purchased by Muhammad Raman, on 31.5.1979, which was pre-empted by Muhammad Afzal, petitioner on the ground of owner of estate. The suit was decreed on 18.5.1983, but the decree was set aside in appeal on 7.9.1983, on the plea that the land owned by pre-emptor was not assessed to land revenue.
3. In RSA No. 154/83, land measuring 23 kanals, 6 marlas situated in village Lurka, Tehsil Nankana Sahib, District Sheikhupura was purchased by Abdul Ghafoor, Muhammad Shakoor and Muhammad Manzoor respondents. A suit for pre-emption was filed by Muhammad Afzal appellant, on the ground of being owner of village estate which was decreed by' the learned Civil Judge on 21.3.1982. In appeal the judgment was set aside by the learned Additional District Judge on 22.2.1983, on the ground that the land owned by the petitioner in the village was not assessed to land revenue, and therefore, the appellant was not covered by the definition of owner of the estate.
4. In two Civil Revisions and RSA three judgments rendered in appeal by the learned Additional District Judge, Sheikhupura whereby the three suits filed by Muhammad Afzal were dismissed have been challenged.
5. Learned counsel for the petitioner/appellant argued that the learned Additional District Judge took erroneous view of law and that view taken by him is contrary to the rule laid down by the Honourable Supreme Court. He submitted that mere fact, that the land is not assessed to the land revenue, will not exclude the same from definition of land nor the owner thereof will be excluded from the definition of owner of the estate. He contended that Jamabandi, produced in three cases Exh.P-3 and Exh.P-5 respectively proved that joint land in which the petitioner is a co-sharer was partly agricultural and the petitioner was thus owner of estate and had the superior right of pre-emption as the vendees in three cases were not owners of estate at the time of sale. He submitted that the land owned by the petitioner being less than 12-1/2 Acres was exempted from payment of land revenue. In view of the amendment made by the Land Revenue Amendment Act, 1976, the revenue authorities leave column No. 9 of Jamabandi as vacant for this reason, though the Jamabandi for previous years would show that the land was assessed to land revenue. Application for additional evidence, to bring on record copy of Jamabandi for the year 1967:68 has been field in three cases alongwith attested copies of Register Haqdaran to substantiate the plea that the land owned by the petitioner was assessed to land revenue. Learned counsel submitted that the learned -Additional District Judge also misread the revenue record by assuming that there was no evidence on record to show that the ownership of the petitioner was less than 12-1/2 Acres.
6. Conversely, learned counsel for the respondent supported the judgment of the learned Additional District Judge and argued that there was a difference between the owner in estate and owner of the estate and that the petitioner/appellant with a view to succeed had to prove that he was owner of the estate. He submitted that respondents do not deny that the petitioner was owner of land in the village but since it was not assessed to land revenue, therefore, the petitioner would not fall within the definition of owner of estate. To support his contention, learned counsel relied on Ghulam Sarwar and .Five others Vs. Allah Ditta and 4 others (1991 CLC 127). Referring to the application for additional evidence, earned counsel submitted that previous Jamabandi will not he relevant, as the character of the land owned by the petitioner, at the time of sale will have to be looked into.
7. The submissions made by the learned counsel for the parties, have been duly attended and considered in the light of the evidence on record.
8. In all of the three cases, the petitioner has claimed superior right of pre-emption on the ground of being owner of the estate. To establish this plea he produced documentary as well as oral evidence which was in the form of Exh. P-3 and Exh. P-5 respectively. The Register Haqdaran does indicate that part of the land jointly owned by the petitioner is cultivable. It is not the case of the respondent that petitioner did not own land, in village at the time of sale. Even this fact has not been denied in the course of hearing of these cases by the learned counsel tor the respondent, that the petitioner/appellant does own land in village where the suit land was sold and that respondents were not owner of any land at the time of sale. The perusal of the written statement would indicate that an evasive defence was taken by raising the plea of estoppel. The plea that the land was not assessed to land revenue or that the petitioner would not be covered by definition of owner of estate on account of absence of assessment of his land to the land revenue was neither raised in pleadings nor this was the case in evidence. Even in the grounds of appeal no such plea was raised. This plea appears to have been raised at the time of arguments in the first appeal which attracted the Court and resulted in reversal of judgment of the Trial Court.
9. The question for consideration, therefore, will he whether mere absence of assessment of land revenue will he only criteria to hold a person to be non-owner of the estate or other factors are to be taken into consideration. This question was considered by the Honourable. Supreme Court, in case of Ghulam Hussain Arshad etc. Vs. Allah Ditta (1993 Law Notes (SC) 608). The operative part of the judgment reads as follows:- "We are inclined to subscribe to the view taken in Muhammad Ansar's case. Even otherwise, it is bindings on us as it has been decided by a Bench of three learned Judges. We are of the view that the question, whether an owner of agricultural land is an owner of the estate, will depend on the factum, whether the land has changed the character or status or not and not on the fact, whether such land is subject to land revenue. An agricultural land, which may have become a building site will not remain agricultural land merely because it remained subject to land revenue and the Owner thereof cannot be treated as owner of estate. We may again point out that a building site has been excluded from the definition of land under sub-section (3) of Section 2 of the Punjab Alienation of Land Act, 1900. Referred to herein above in para 1. The factum that land is subject to land revenue, will be relevant factor to decide the nature of the land in issue, but would not be conclusive.
Adverting to the facts of the present appeals, we may observe that there is a concurrent finding of all the Courts below on the factum that the appellants' predecessor-ininterest and now the appellants own agricultural land measuring 167 kanals in the revenue estate of marian. It was not the case of the respondents before the Courts below that the above land's status has changed.
The appellants have been non-suited by the learned Additional District Judge and by the learned Judge in chamber on the ground that the appellants have failed to prove that their land was assessed to land revenue which grounds, in our view, is not sustainable for the foregoing reasons.
The appellants in Civil Appeal No. 1545 of 1990 had produced before the Trial Court Exh.P-14 (at page 85 of the paper book) an extract from the mutation register, which indicates that the land was in self-cultivation of the appellants' predecessor in-interest but the column in relation to revenue i.e. Column 13 is blank. The appellants also attempted to produce similar document in Civil Appeal No. 1544 of 1990 before the learned Additional District Judge, as an additional evidence under Order XLI Rule 27, CPC, but their request was declined. The appellants have also filed application under Order XIV Rule 8 read with Order XXXIII Rule 5 and 6 of the Supreme Court Rules, 1980 in the above two appeals for placing on record revenue receipts, copies of Dhal Bachh and copies of Khatoonis. We are not inclined to grant above applications. But since we are of the view that the above ground on which the appellants were non-suited is not sustainable in law, the above appeals are allowed; the judgments/decrees of the learned Additional District Judge and of the learned Judge in chamber are set aside, and the judgment/decrees of the learned Trial Court are restored."
10. In the precedent case the Honourable Supreme Court took the view that to resolve the question as to whether an owner of land is owner of estate will depend on the fact as to the land had changed the character and not on the fact that the land is subject to land revenue. It was further held that if a person is owner of agricultural land in the revenue estate, which has not changed its status from the agricultural land to the building site, will continue to be agricultural land and owner thereof will be considered to be owner of village estate. Even in earlier case Civil Appeal No. 396/90 the Honourable Supreme Court ruled that it would not be necessary that the agricultural land must be assessed to land revenue though it would not be correct that owner of the estate must own agricultural land assessed to land revenue. It is further observed that some land may not be assessed to land revenue but status of agricultural land may not change and a person who owns such land would he deemed to be owner of an estate.
11. Learned counsel for the respondents laid much emphasis on the case of Ghulam Sarwar and 5 others Vs. Allah Ditta and 4 others (1991 CLC 127) to convess that mere ownership of agricultural land would not bring the owner within the definition of owner of estate unless land was assessed to the land revenue. As a matter of fact, this very judgment given in RSA No. 136 of 1998 was considered by the Honourable Supreme Court, in Ghulam Hussain Arshad Vs. Allah Ditta (1993 Law Notes (SC) 608) and was not approved. On acceptance of appeal, the judgment was set aside in appeal while the judgment of the learned Trial Court was restored. In this view of the matter, the respondents cannot support the impugned judgment by placing reliance on a view which has not been approved.
12. Learned counsel for the respondents also relied on Faiz Bakhsh and others Vs. Allah (1994 SCM R 1168) the facts whereof are distinguishable. In the said case, it was held, that in order to defeat the right of pre-emption on being owner of estate, the defendant should have status as an owner of estate at the time of sale and continued to hold such right even at the time of institution of suit and final decision. It was ruled that by purchase of Sakni land for construction purposes the vendee could not attain the status of owner of estate, so as to defeat the pre-emption suit.
13. Learned counsel for the respondents further relied upon Abdul Rashid and others Vs. Khurshid Ahmad and others (PLD 1989 SC 373). It was a case in which it was held that purchase of Sakni land before the sale of land will not confer an equal right of pre-emption on the vendee as being owner of the estate, so as to defeat his right to pre-empt the sale.
14. From the rule laid in the case of Ghulam Hussain Arshad Vs. Allah Ditta (1993 Law Notes (SC)
608) it is clear that mere non-assessment to land revenue does not exclude the owner of agricultural land from the qualification of ownership of estate and that discontinuance of assessm ent to land revenue does not exclude the land from the category of agricultural land, till such time, its character is not shown to have undergone change. In this case admittedly, part of the land owned by the petitioner is agricultural and is under cultivation. This is not the case of the respondents that the land owned by the petitioner had ceased to he agricultural or had assumed- the character of building site. This being so, the petitioner will he deemed to he owner of the estate and will have a superior right to pre-empt the sale as admittedly the vendees in the three cases were not owner of the estate at the time of sale. The view taken by the learned Additional District Judge is contrary to the rule laid down by the Honourable Supreme Court and, therefore, it cannot sustain.
15. In view of the evidence existing on the record, the petitioner is already proved to he owner of the estate and, therefore, additional evidence, to bring on record the previous Jamabandi will not he necessary, hence, the request for additional evidence is not acceeded to.
16. For the reasons above, the two revisions and. RSA are accepted, the judgments in the three appeals rendered by the learned Additional District Judge are set aside and by restoring, the judgment of the learned Civil Judge, the decrees for possession through pre-emption in three suits in favour of petitioner/appellant are restored.