MAULVI ANWARUL HAQ, J.--- The suit land measuring 6 Kanals, 18 Marlas was purchased by respondents Nos. 8 to 10 vide registered sale-deed on 22.5.1972 for a consideration of Rs.15,000/-.
On 21.5.1973, Bashir Ahmad predecessor-in-interest of respondents Nos. 1 to 7, stating that he is a brother of the vendor namely Nazir Ahmad, who is also a co-sharer in the Khata, filed a suit for possession of the suit land for pre-emption. The suit was decreed ex parte on 30.3.1976. The ex parte decree was set aside in appeal by the learned Additional District Judge, Gujranwala vide order dated 5.12.1976, a Civil Revision filed against the said order was ultimately dismissed by this Court on 26.11.1990. The matter went back to the learned Trial Court. Respondent Nos. 8 to 10 had sold the land to the present petitioners vide registered sale-deed dated 31.10.1975. After the said remand the petitioners were impleaded as defendants in the suit and amended plaint was filed on 25.10.1992. To this plaint a written statement was filed by the respondents Nos. 8 to 10, as also by the petitioner. The respondents Nos. 8 to 10 stated that the land has lost its agricultural character and has attained the urban character on the spot and as such is not pre-emptiable; that the land was purchased for constructing a factory which stands constructed and as such is not pre-emptiable; that the abadi where the land is located is urban and there is no custom of pre-emption; that the deceased plaintiff was estopped by his word and conduct to file the suit. On merits it was stated that the land was purchased for a consideration of Rs.15,000/- for a factory and after the purchase, a factory was constructed. It was mortgaged with the Bank. Respondents Nos. 8 to 10 could not pay the mortgage money and the factory was auctioned and it was purchased by, the petitioner in the auction.
2. The petitioner in their written statement took the plea that the suit property is urban immovable property and is not pre-emptiable, - that Punjab Pre-emption Act is not applicable to the suit property; that there is no custom of pre-emption; that the petitioners are bona fide purchaser and that they had spent Rs.3,00,000/- in affixing machinery etc; that the deceased plaintiff has waived his rights; that the plaintiff had sold his land to other persons. On merits it was stated that the land was located at berm of G.T. Road, Gujranwala and the area of the alleged land was commercial and residential even before the sale; and that on the plot an oil mill was constructed which was mortgaged with National Bank of Pakistan who sold the property as attorney of the original vendee and the petitioners purchased the -same; that the petitioners have constructed a factory at a cost of Rs..10,00,000/-. In view of the said pleadings issues were framed. The relevant being issue No. 2 it is reproduced hereunder:- "Whether the suit land is not pre-emptiable?"
Evidence of the parties was recorded. The learned Trial Court dismissed the suit, primarily on the basis of finding recorded on said issue No. 2, as it was held that the land is not pre-emptiable.
Feeling aggrieved Bashir Ahmad plaintiff filed a first appeal. During the hearing of the appeal, he died and respondents Nos. 1 to 7 were impleaded as his legal heirs. The first appeal was heard by a learned Additional District Judge, Gujranwala, who proceeded to allow the same and proceeded to decree the suit, directing the appellant/respondent to pay Rs.1,00,000/- with an option to the petitioners to remove the structure in which case they were entitled only to receive the price of land vide judgment dated 26.4.1995.
3. Learned counsel for the petitioners argues that it was proved on record that the land lost its agricultural character and had attained the urban character and as such was urban immovable property and since no custom existed or was alleged, .The suit was rightly dismissed by the learned Trial Court and that the learned Additional District Judge had acted with material irregularity while setting aside the said judgment and decree. Learned counsel for the respondents Nos. 1 to 7 on the other hand contends that the entire evidence led by the petitioners pertains to a period after date of sale and according to the learned counsel what is relevant is the position of the land on the date of the sale. The precise contention of the learned counsel is that on date of sale, the land was agricultural in nature. Similarly he makes reference to the fact that out of the same Khata, land was sold by the same vendor to three other persons as well against whom the pre-emption suits were filed and that all the suits were decreed and upheld in appeal and in some case even by this Court and Supreme Court. He thus, supports the impugned judgments and decrees.
4. I have gone through the copies of the record appended with the Civil Revision with the assistance of the learned counsel for the parties. I have already stated above, the peculiar circumstance of this case i.e. That although sales took place on 22.5.1972, the suit was filed on 21.5.1973, yet it is only in the year 1992 that the defendants in the suit filed their pleadings. I have reproduced some Material contents of the written statement while narrating the facts of the case above. The reading of the written statement filed by the original defendants Ns. 8 to 10 clearly gives an impression that the case set up was that the land was agricultural but had lost such character over a period Of time for the reasons stated therein i.e. Construction of the factory on the same.
However, petitioners who are subsequent vendees pendente lite have taken a plea that even at the time of sale the said land was urban immovable property. The learned counsel for the plaintiffs/respondents have raised the objection that assignment in favour of the petitioners being during the pendency of the suit, their position cannot be better than that of the legal heirs of a party to the suit and that they cannot take defence rot taken by an original party. However, to my mind, since the respondents Nos. 8 to 10 have, in fact, taken the plea, the petitioners would not be barred to take the said specific plea as taken in the written statement.
5. To begin with the land was sold by the vendors by means of a registered sale-deed dated 22.5.1972, a copy whereof is on the record as Ex.P.2. In this document, it is narrated that the land measuring 6 Kanals, 18 Marlas in Khata No. 42 Khewat No. 86 and Khasra No. 257 as per copy of the register Haqdaran Zamin for the year 1968-69, situate in Village Qila Chand Tehsil and District Gujranwala is being sold. As per the boundaries stated in the sale-deed, the land is on the west of G.T. Road while on the three sides is the land of the other persons. The said Register Haqdaran Zamin for the year 1968-69 is Ex.P.3. According to this document, Khata No. 42 is comprised of several fields numbers and the total land of the khata is 249 Kanals, 11 Marlas. Out of these 215 is "Null Chahi" while remaining.34 Kanal, 6 Marlas of land is Nehri.
6. The petitioners in order to prove their pleas produced oral as well as documentary evidence.
Masood Ahmad Bhatti is DW-1. He is the architect and he prepared the site plan Ex.D1. The statement of this witness was recorded on 6.6.1993. In reply to very first question in the cross- examination he states that he had inspected the site for the first time two months ago; thus the said plan even if admitted to be correct, (the witness' is not in a position to spot out the site which he inspected some where in April, 1993), is not 'at all relevant for the purpose of present suit. DW.2 Muhammad Akram scribe has been produced who proved the registered sale-deed Ex.D.2 whereby the suit land was sold by the National Bank to the petitioner on 31.10.1975. I may state here that in this sale-deed also the description of the land is the same as given in the sale-deed Ex.D.1 and with reference to the same document. Dalshad Ahmad DW.3, aged 44 'years. In his statement recorded on 18.7.1995, has stated that in Qila Chand there is a small industrial estate and they are selling land in the form of plots. Precisely with reference to suit land he states that it is located on G.T. Road and there is a factory constructed on it. According to this witness factory was constructed about 22/23 years ago. He states precisely it was six months after the purchase of the land that the factory was constructed. He also stated that the land was not being cultivated. In reply to a question in cross-examination he states that in the year 1975 there was no post office in the village. He states that Murad Hospital was constructed some 12/14 years ago, Jalil Town was constructed 17/18 years ago. He admits that the village fall within the Union Council Atawa; that the Industrial Estate was established 6/7 years ago. He admits that he is a friend of petitioner No. 1. It would thus be seen that despite efforts this witness has not been able to stretch his statement back to the time of sale. Mubarik PW.4 has made a statement which is almost a verbatim copy of the statement made by DW.3. Similar position is in cross-examination. DW.5 Ejaz Ahmad is a graduate engineer and has prepared a survey of the factory existing on the spot and plan Ex.D-4.
Muhammad Amin is DW.6. He is an employee of WAPDA and according to his record an ,application was filed for electric connection on 26.6.1972. DW-7 Sheikh Mukhtar Ahmad is a Sale Supervisor of Sui-Gaz Company. According to him Sui-gas connection was applied on 29.3.1973.
DW-8 is Muhammad Aslam petitioner No. 1 who states that 5/6 months after the purchase of the land, the original vendees for constructing factory mortgaged the land with the .National Bank of Pakistan and on their failure to pay the loan the Bank sold the factory as an attorney of the said vendee to the petitioners and the factory was named as United Oil Mills and that some construction was made and some machinery was affixed at costs of Rs.3,00,000/-; that he was not aware of the pendency of the present suit; that the factory is located in Urban Abadi and Jalil Town is towards west while some colonies are in the vicinity; that there is an industrial Co-operative Bank, there are private and Government schools and petrol pump; that there are show rooms for Cars; that the land is being sold in the form of plot; that the deceased plaintiff himself had sold in the form of the plot. One does not need to refer to the cross-examination of this witness to see that entire details pertains to a period of time after the sale. According to him for the first time he went to the factory in the year 1975. According to him Murad Hospital was constructed some 15 years ago, Wapda Colony and Judicial Colony some 14/15 years ago; that the by-pass was constructed some 18/20 years ago and that he is not aware of the stay in the suit. His statement was recorded on 18.10.1993.
7. It may be noted that none of the original vendees entered the witness-box. On the other hand respondents 1 to 7 produced the copies of the judgment and decrees passed in the pre-emption suits filed by the deceased Bashir Ahmad in respect of the land sold by same vendors in the same khata. Whereas the said decree was passed against Saima Yasmin on 7.4.1982 in respect of the sale made on 16.7.1975 (Ex.P.8), the other decree was passed against Shahid on the same date in respect of the sale-deed 16.7.1975 (Ex.P9) and appeals were dismissed vide Ex.P.13 and Ex.P14 while decree was executed vide Ex.P.11 and Ex.P.12. Another decree was passed in respect of sale dated 30.11.1975 against Muhammad Akram on 22.5.1985 Ex.P.17). Appeal was dismissed on 3.5.1988, Ex.P.20.
C.R. No. 24/94 was dismissed by this Court on 29.5.1994, Ex.P.21) while C.P. No. 676-L/1994 was dismissed by the Supreme Court on 12.6.1995. A certified copy thereof has been produced on the.
Record.
8. I have referred to the relevant record with reference to which sale-deed Ex.P-2 was executed.
There can be no dispute that the land was agricultural being partly Null Chahi and Partly Nehri. I have also referred to documents Ex.D-1, D-2 and Ex.D-3, the agreement to sell in favour of the petitioners and the land similarly described therein. It is an admitted position on record that the construction was raised at the site at least six months after the said sale. The revenue record Ex.D.8, D.9, D.10 and D.11 relied upon by the petitioner pertains to a period after sale when the factory was constructed by the original vendee. Learned counsel for the respondents has relied on the case of Abdul Aziz Vs. Muhammad Hassan (1996 C.L.C. 1410) to contend that it is the status of the land not the area in which same was situated would determine its status for purpose of suit under Section 15, Punjab Pre-emption Act, 1913. It was further held that it is the date of sale which is relevant date for the purpose. I find that in the said judgment, almost entire case-law on the subject was capitulated and it was held that the land was rightly declared to be agricultural by the Court of first appeal.
9. After having thus examining the record and considering the said judgment' in the case of Abdul Aziz, I do not find the judgment and decree passed by the learned Additional District Judge, to be suffering from any of the defects under Section 115, C.P.C. So as to enable this Court to interfere with the same in revisional jurisdiction. Civil Revision is accordingly dismissed, leaving the parties to bear their costs.