' This civil revision impugns the judgment and decree, dated 4-11-1996 passed by the learned District Judge, Bhakkar, dismissing the appeal of the petitioner against the judgment and decree, dated 30-1-1995 of the learned Senior Civil Judge, Bhakkar whereby, suit for possession through pre-emption filed by the petitioner was dismissed.
2. Relevant facts for disposal of the present revision petition are that land measuring 9 Kanals and 9 Marlas was owned by Mst. Shehzadi widow, Rehmat Ullah, Inayat Ullah, Aman Ullah, Asmat Ullah, Hadayat Ullah, Ehsan Ullah, Sana Ullah Sons, Mst. Parveen Akhtar, Mst. Shagufta Bibi, Mst. Rakhsana Bibi, Mst. Kausar Bibi and Mst. Azra Bibi daughters of Ahmad Saeed. They transferred the land to Abdul Aziz respondent herein vide Sale Mutation No,947 dated 29-1-1992 for ostensible sale price of Rs,20,000 but it has been alleged that Rs,30,000 has been shown in the mutation as sale price to defeat the superior right of pre-emption of the petitioner. Suit for possession through pre-emption was filed by Sheikh Fateh Muhammad petitioner against Abdul Aziz respondent in the Court of learned Senior Civil Judge, Bhakkar on 25-3-1992 on the basis of owning the land contiguous to the suit-land and that common means of irrigation.
3. Suit was contested by the respondent by filing the written statement. It was contended that land in question was not agricultural, but urban within the limits of Municipal Committee, Bhakkar, therefore, was not pre-emptible, and the requisite Talbs were not fulfilled in accordance with law.
Further that the plaintiff/petitioner is estopped by his conduct to bring the suit. It was also stated that Rs,3,00,000 has been fixed in good faith and actually paid to the vendor.
4. From the divergent pleading of the parties, the following issues were framed by the learned trial Court:-- ' ISSUES:
(1) Whether plaintiff has got right of pre-emption qua defendant? OPP
(2) Whether plaintiff has fulfilled legal conditions of Talb-iMuwathibat and Talb-i-Ishhad? OPP
(3) Whether sale price of Rs,300,000, asserted by defendant was fixed and actually paid? OPD
(4) If not what was market value of the suit-land? OPP.
(5) Whether suit property is pre-emptible? OPD
(6) Whether plaintiff is estopped by his words and conduct to file the present suit? OPD
(7) Whether defendant has improved the suit-land to the extent of Rs,40,000, if so, when and to what effect? OPD
(8) Whether the suit is time-barred? OPD
(9) Relief.
5. After recording the evidence, the learned Civil Judge decided issue of superior right of pre- emption in favor of the plaintiff and it was held that sale price of Rs,3,00,000 was fixed and paid in good faith. Issue No,6 was decided against the respondent. Under Issue No,5, Court hold that:-- "There is sufficient evidence in the form of documents like Mutation No,947 Exh.D.3 and consistent statements of D.W.1 and D.W.2, on the point that the suit property had lost agricultural character much prior to the institution of the suit. It was part and parcel of the Ward No,12, Bhakkar City, was located in a street and surrounded by numerous houses. Plaintiff failed to prove the existence of a custom of pre-emption in the Municipal Limits of Bhakkar City. It is held, therefore, that suit property is not pre-emptible under section 2-A of the Pre-emption Act, 1989, as it consists of immovable property situated in urban area within the Municipal Limits of Bhakkar City."
' Regarding the performance of Talb-e-Muwathibat and Talb-e-Ishhad, the learned Senior Civil Judge decided Issue No,2 against the petitioner. He recorded a finding: "In the instant case, the pre-emptor while making Talb-e-Ishhad did not refer to Talb-e- Muwathibat which he had made earlier. It is held, therefore, that the requisite 'Talbs' were not duly performed by pre-emptor. Issue is decided in negative."
' Consequently, on the basis of findings on Issues Nos.2 and 5, the learned Senior Civil Judge dismissed the suit of the pre-emptor/petitioner vide his judgment and decree dated 30-1-1995. The learned District Judge, endorsed the findings of the learned Senior Civil Judge on Issues Nos.1 and 6 by observing:-- "Therefore, even if, the land in question in shown to be agricultural in the Revenue Record but included within the limits of Municipal Committee, Bhakkar, its character has been changed as urban immovable property, being exempted by Preemption Act, 1991, under section 2(a) and that no custom was established for pre-emption of the urban land."
' The learned District Judge also maintained the findings of the learned Senior Civil Judge on Issue No,2 regarding performance of Talb-e-Muwathibat and Talb-e-Ishhad. Resultantly, he proceeded to dismiss the appeal.
6. Learned counsel for the petitioner firstly contends that irrespective of the fact that the land in dispute is included in the urban area of the Municipal Committee, Bhakkar, the same shall be remained as agricultural land in the character of the same is not changed. Reliance has been placed on PLD 1982 SC 159 and 1990 CLC 726.
7. Conversely, learned counsel for the respondent on the strength of case reported as 2001 CLC 51, argues that the suit-land was urban immovable property within the meaning of section 2(a) of the Punjab Pre-emption Act, therefore, was not pre-emptible.
8. To decide the controversy between the parties, provisions of section 2(a) of the Punjab Pre- emption Act, 1991 are relevant, which reads as under:--
9. "'Immovable property' means immovable property situated in any area other than an urban area or within cantonment limit as declared by any law relating to Local Bodies or Cantonments, as the case may be, for the time being in force."
' In view of section 5, right of pre-emption shall arise in case of sale of immovable property. The right of pre-emption vests, according to section 6, in the following persons:--
(a) firstly, in Shafi Sharik;
(b) secondly, in Shafi Khalit; and
(c) thirdly, in Shafi Jar. Explanation:
(i) Shafi Sharik means a person who is a co-owner in corpus of the undivided immovable property sold.
(ii) Shafi Khalit means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation.
(iii) Shafi Jar means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold.
"Immovable property" according to section 2(a) of the Pre-emption Act, 1991, either situated in village or; urban does not include agricultural land. This is clear from the definition of immovable property, which excludes the agricultural land. The term "agricultural land" has been defined in the Punjab Alienation of Lands Act, 1900, to the effect that, it means land which is not occupied as the site of any building in a town or village and is occupied or left for agricultural purposes or for purposes subservient to agriculture or for pasture and for this purpose shall even include the sites of buildings and other structures of such lands. The term "urban immovable property", therefore, will not cover "agricultural land" merely on account of its being located in an urban area. The Government no doubt has declared that there will be no right of preemption in respect of certain properties mentioned in section 23(a) and (b). In the present case, it has not been established that notification in question was issued 'by the Government in exercise of the power under section 23 of the Pre-emption Act. On the touchstone of the above-stated law, Jamabandi for the year 1988- 1989 Exh.P.5 has been examined in which, it has been clearly mentioned in Column No,13 that the land is still subject to the land revenue. The contention of the learned counsel for the respondent is that an agricultural land becomes excluded from the purview of act merely on account of its inclusion in the urban area. He has relied on the Impugned Mutation No,947 dated 29-1-1992 and argued that the land is situated in urban area, therefore, the same is not preemptible. In case reported as Salamat Rai v. Kanshi Ram and others (AIR 1918 Lah. 334) it has been ruled:-- "The mere fact that for certain reasons the Local Government has seen fit it to include a part of the Premagarh estate within the Municipal limits of Hoshiarpur City, does not necessarily mean that the locality in question has become a part of the town for purposes of pre-emption."
' Same principle was reiterated by a Division Bench in Abdul Rehman v. Haji Rashid (AIR 1937 Lah.
182), wherein, it was held that "the mere fact that a rural area is included within the limits of a town is not conclusive as to the urban character of the area in question". The above-referred cases came up for consideration by the Hon'ble Supreme Court of Pakistan in case of Hafiz Hassan Muhammad and 2 others v. Abdul Hameed and 2 others (PLD 1982 SC 159) and while interpreting section 7 of the Punjab Pre-emption Act (I of 1913), it was ruled that:-- "Inclusion of agricultural land in urban area. Section 7, Punjab Pre-emption Act, 1913 concerns only with 'urban immovable property'.---Lands in question not 'urban immovable property' Contention that agricultural land becomes excluded from purview of Pre-emption Act merely on account of its inclusion in urban area, held, not tenable."
9. The judgment reported in 2001 CLC 51, relief by the learned counsel for the respondent is not applicable to the facts and circumstances of the present case, because section 2(a) of the Preemption Act has been declared un-Islamic by the Hon'ble Supreme Court of Pakistan in case of Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore (PLD 1994 SC 1) and in the operative part, it was ruled that the judgment will take effect from 31-12-1993. After the abovesaid date, the property situated in the urban area or Cantonment limits can be subjected to law of pre-emption. Since the suit property in the instant case was not an urban area or within the cantonment limits nor there were any law declared by the Local Government or the Cantonment Board declaring the property exempted from law of pre-emption, therefore; both the Courts below fell in error while recording the findings on Issues Nos.1 and 5 against the petitioner.
Resultantly, findings on the above issues are reversed and it is concluded that the suit property is pre-emptible under the Punjab Pre-emption Act, 1991.
10. The petitioner/plaintiff has come to know about the sale in question of the suit-land on 17-3- 1992, when he was told by Abdur Rehman and Munir Ahmad P.Ws. Showing his intention to bring the suit for possession regarding the sale. The learned District Judge on the basis of notice Exh.P.4 has observed that "he mentioned that he came to know about the sale about 6 days prior to 22-3-1992, when notice Exh.P.4, was written, whereby it is obvious that he had come to know about the sale of the suit-land on 16-3-1992 and not on 17-3-1992". To my mind, this observation of the learned District Jude is not warranted under the law. The plaintiff alleged in the plaint that he has come to know about the same on 17-3-1992 and he committed with this contention during his examination- in-chief, therefore, Talb-e-Muwathibat has been made by the petitioner/plaintiff in this case. The learned District Judge has recorded certain contradictions in the statements of the petitioner/plaintiff, Abdur Rehman and Munir Ahmad P.Ws. And observed that they are not unanimous nor consistent. The statement of the plaintiff was itself sufficient to prove Talb-e- Muwathibat and it was not required under the law to produce other witnesses in the Court regarding Talbs. Reliance can be placed on Abdul Ghias v. Syed Haji Taj Muhammad and 42 others (PLD 1995 Quetta 1), Abdul Malik v. Muhammad Latif (1999 SCMR 717) and Muhammad Gul v.
Muhammad Afzal (1999 SCMR 724). No inflexible rule can be laid for application of certain rule in a judgment to every and each case as each case proceeds on its own diverse facts. It is not necessary to mention the name of the person in the plaint in whose presence, Talb-e-Muwathibat was made. However, the adverse inference can be drawn under Article 129(g) of Qanun-e- Shahadat Order, because the evidence, which could be and is not produced would, if produced, be unfavorable to the person who withholds it. But here in this case, the plaintiff/petitioner has produced the witnesses of Talb-e-Muwathibat and Talb-e-Ishhad. Minor contradiction is not helpful to the respondent. The findings of both the Courts below on Issue No,2 is result of misreading of the statement of plaintiff alongwith his witnesses Abdur Rehman and Munir Ahmad and also the notice Exh.P.4.
11. For what has been discussed above, this revision petition is allowed. The judgment and decree dated 30-1-1995 of the learned Civil Judge as well as dated 4-11-1996 of the learned District Judge, Bhakkar are set aside. The suit for possession through pre-emption filed by the petitioner/plaintiff is decreed. The petitioner/plaintiff is directed to deposit the remaining amount of Zar-e-decree with one month, failing which, his suit shall stand dismissed. Parties to bear their own costs. Revision