' MUHAMMAD KHALID ALVI, J.--- Brief facts of the case are that land measuring 277 Kanals fully detailed in the headnote of the plaint was purchased by the appellants/defendants through registered sale-deed dated 25-1-1981, for a consideration of Rs.1,52,925. The said sale was sought.
To be pre-empted by respondents Mukhtiar Ahmad and Muhammad Irshad by filing a suit on 11-11- 1981, claiming themselves to be co-sharers and owners of the estate.
2. The suit was contested by the appellants by filing their written statement. The plaintiffs/respondents' right of pre-emption was denied and it was claimed that they were tenants of the suit-land at the time of sale, therefore, they have preferential right as against the respondents/ plaintiffs. It was further pleaded that they had obtained the possession of the land in dispute under the sale 3/4 years before the registration of the sale-deed, therefore, the suit tiled by the respondents was barred by time. On the divergent pleadings of the parties, following issues were framed by the learned trial Court:--
(1) Whether the plaintiffs have superior right of pre-emption qua the vendee-defendants? OPP
(2) Whether the ostensible sale price of Rs.1,52,925 was fixed in good faith or actually paid? OPD
(3) If not, what was the market value? OPP.
(4) Whether the description of suit-land is incorrect? If so, its effect? OPD
(5) Whether the plaintiffs have no cause of action? OPD
(6) Whether the defendants validly improve the status of the suit-land? If so, how much and when?
OPD
(7) Whether the plaintiffs are estopped to sue by their conduct? OPD
(8) Whether the suit is wrongly valued for the jurisdiction and court-fee? If so, its effect? OPD
(9) Whether the suit is time-barred? OPD
(10) Relief.
' The parties led their respective evidence. After evaluating the evidence of the parties, the learned trial Court vide its judgment and decree dated 22-5-1985, proceeded to pass a pre-emption decree in favour of the respondents/plaintiffs in the sum of Rs.2,02,925 out of which Rs.1,52,925 was the sale price, Rs.40,000 as improvements and a sum of Rs.10,000 as incidental charges. This pre- emption decree is being assailed through the instant regular first appeal. During the hearing of this appeal on 10-6-1996, with the concurrence of the learned counsel for the parties, the following additional issue was framed:-- Issue No,5-A ' Whether the defendants/vendees were tenants of the suit-land at the time of sale, if so, its'effect?
OPD"
' The learned trial Court was directed to record the additional evidence on the above-referred issue and return the record of this Court together with its findings recorded on the additionally framed issue. The learned trial Court recorded additional evidence of the parties and vide order dated 14- 10-2000, held that all the appellants/defendants were tenants over the suit-land at the time of sale.
On 13-12-2001, the respondents filed their cross-objections to the findings of the trial Court on Issue No,5-A within the time allowed by this Court.
3. Keeping in view the inconsistencies of the pleas taken by the appellants in their written statement i,e, that they had entered into possession under the sale before the registration of the sale-deed, therefore, the suit was barred by time and, on the other hand, that at the time of sale they were tenants. Learned counsel for the appellants opted to abandon the plea of limitation and preferred to argue his case only contesting the right of pre-emption being a tenant.
4. Learned counsel for the appellants by referring to Exh..D.10 Jamabandi for the year 1984-85 contends that all thd appellants are recorded as tenants over the suit-land; that according to Exh.D.9 Khasra. Girdawri for the crop a Rabi 1979, the appellants are recorded as tenants and that according to Exh.P.8, Khasra Girdawri relating to the crops of Rabi and Kharif of ,1981, the appellants are also recorded as tenants over the suit property. With respect to the pre-emptive right of the respondents, it is contended that the land purchased by respondents through sale-deeds Exh.P.1 and Exh.P.4 is not assessed to land revenue, therefore, in view of section 15(C) thirdly of the Punjab Pre-emption Act, 1913 and law laid down by the superior Courts reported as PLD 1989 Supreme Court 373, 1989 CLC 195 and 1977 SCM R 297, the land which is not assessed to land revenue cannot clothe a person with a status of owner of the estate. It is finally submitted that the sale in question is a divisible sale because the shares of all the vendees have been definitely described in the sale- deed and they had also paid their respective share of price according to Exh.D-1 to Exh.D-8.
Therefore, if it is found that some of the vendees were not tenants at the time of sale, then, at least, those who may be found to be tenant at the time of sale are entitled to defend their share of the land.
5. On the other hand, learned counsel for the respondents contends that all the appellants/vendees were not in possession of the land in dispute at the time of sale as tenants, therefore, by joining stranger, il have sunk to the status of stranger. Relying on 1993 SCMR 1466 and 1998 CLC 1935 contends that the land which is agricultural in nature may be not paying land revenue, but still retaining its culturable status would clothe the owner with a status of owner of estate. The respondents having purchased through Exh.P.1 and Fxh.P.2, lands measuring 200 Kanals and 80 Kanals in the village cannot be said to be owners of nonagricultural land. It is finally submitted that the sale in question is not divisible inasmuch as the respective sale consideration of each share holder is not ascertainable.
6. We have considered the arguments of the learned counsel for the parties and have also perused the record of the learned trial Court.
7. The sale in the instant case took place on 15-1-1981, therefore, the relevant crop for the purposes of establishing tenancy is of 'Rabi' 1981.. Exh.D.10 is Jamabandi for the year 1984-85, which is not relevant to determine the tenancy of appellants at the time of sale. Even otherwise, appellants Nos.1 to 12 are recorded as tenants in the said 'Jamabandi' but still appellant No,13 Mst. Mehran Bibi is not so recorded, therefore, by joining a stranger i,e, Mst. Mehran Bibi, the other appellants also cannot claim any competitive right of pre-emption as against respondents. Exh.D.9 is Khasra Girdawri of Rabi 1979, much prior from the sale: therefore, this document also cannot establish that the appellants were tenants over the suit-land at the time of sale. Furthermore, even according to this document only three out of thirteen appellants/vendees namely Mubarak All appellant No,3, Muhammad Ali appellant No,5 and Hassan Din appellant No,12 have been recorded as tenants.
Therefore, even this document is of no help to the appellants as the abovesaid vendees have joined strangers with them, therefore, all the appellants/vendees are hit by the principle of Sinker.
8. So far as the question of divisibility of sale is concerned, the appellants have not tendered in evidence the impugned sale-deed. However, a certified copy is otherwise available on the file of the learned trial Court. According to which share of land for each vendee is specified but the sale consideration is mentioned in lumpsum. Even though, the shares of land were specified in the said sale-deed, still the payments made by the appellants according to their respective shares is not established on record as is evident from Exh:D-1 to. Exh.D-8, produced and referred by the appellants. These are the Bank receipts showing the payment made by some of the vendees to the credit of account of Asfahani Estates but these receipts are not from all the vendees. The sum total of these receipts is equivalent to. Rs.152,925. Although the amount is the same but it is not on behalf of all the vendees and is also not to the credit of the vendor i,e, Mst, Qamar Azeemi, who was a vendor of the appellant. These receipts show credit in favour of Asfahani Estates and not to the vendor.
9. In view of the above circumstances, the sale in question does not qualify the test for divisibility laid down by the Honourable Supreme Court in PLD 1968 Supreme Court 140 and 1991 SCM R 1419.
' Column No,9 of Exh.D.10 i,e, `Jamabandi' of the land in dispute is blank. This column relates to assessm ent, levy and recovery of land revenue. No-doubt, it is held in the law referred by the learned counsel for the appellants that if a person owns land in a village which is not assessed to land revenue will not make him owner of the estate to claim a right of pre-emption. But the ratio of the said judgments is to exclude those owners of land who own land in a village with a nonagricultural status and one of the considerations to determine the status of land is to see whether it is assessed to land revenue or not. For instance, if a person owns a small piece of land in village Abadi for residential purpose, it would not clothe him with the status of "owner of estate".
However, having that residential piece of land, he can be said to be "owner in estate". Both the respondents purchased two pieces of land in the disputed village, one measuring 200 Kanals and the other measuring 80 Kanals through E.Xh.P-1 and Exh.P-4. These two big chunks of land in a village, by no stretch of reasonings can be said to be non-agricultural land. There is no evidence on record from the appellants' side that the land purchased by the respondents through Exh.P-1 and Exh.P-4 is being used for any other purpose than agricultural. If a land is assessed to land revenue but is ultimately being used for a non-agricultural purpose and has lost its culturable character and is so established on record, the persons owning such land would not be entitled to a right of pre-emption. As against this, a person owning a piece of land not being assessed to land revenue but otherwise C ascertainable as having agricultural status would be entitled on the basis of such ownership to a right of pre-emption. The object underline the law declared by the superior Courts is only to exclude non-proprietors from the estate. It is not always necessary that the agricultural land must be assessed to land revenue. In some eventualities, a particular area might not be under assessm ent for any reason for a particular period or under section 56-A of the Land Revenue Act some land may be exempted from the land revenue.
11. Respondents having become owner of the estate by purchasing big chunks of agricultural land measuring 200 Kanals and 80 Kanals in village Chak No,340/TDA through Exh.P-1 and Exh.P-4 before the sale in dispute are, therefore, held to be owner of estate (Chak No,340/TDA).
12. For what has been stated above, we find no merit in this appeal, the same is accordingly dismissed.