' This judgment will dispose of Writ Petitions Nos.7525, 9063, 9064, 9065, 9066, 9067, 9068, 9069, 9070, 9071, 9072, 9073 and 9074 of 2003 as common identical questions of law and facts are involved in all these petitions.
2. Facts giving rise to the present writ petitions are to the effect that 2 Kanals of land out of Khasra No, 111 measuring 8 Kanals had been divided by the owners into 12 plots of different sizes and sold out to various vendees---the present petitioners herein for building purpose through registered sale-deeds. Respondent No,4 being tenant of the land claiming his superior right of pre-emption filed separate different suits for possession through pre-emption, before the A.C./Collector, Sadar, Gujranwala Sub-Division. All the suits were contested by the vendees/ petitioners denying the averments of the plaint by taking a specific stand that the suit land is exempted from the law of preemption.
3. From the factual controversy appearing on the pleadings of the parties, the learned trial Court/A.C., Collector, Gujranwala framed the following issues:--
(1) Whether the suit is time-barred?
(2) Whether the plaint is deficient in court-fee and its effect?
(3) Whether the land was in possession of the defendant prior to sale and as such the suit is not maintainable?
(4) Whether the plaintiff has no cause of action?
(5) Whether the suit land is residential and therefore, exempted from the law of pre-emption?
(6) Whether the plaintiff has superior right of pre-emption?
(7) Whether ostensible sale price was fixed in good faith and actually paid?
(8) In case the Issue No,7 is not proved, what is the market price of the suit land?
(9) Relief.
4. After recording and appreciating the evidence of the parties, the learned trial Court/A.C. Decreed all the suits, vide, his judgment and decree dated 28-6-1984. Aggrieved by the said orders, 12 different appeals were preferred before the Additional Commissioner Revenue, Gujranwala Division, Gujranwala, who accepted the appeals and set aside the order of the Collector vide his judgment dated 20-5-1985. Respondent No,4 filed 12 separate revision petitions before the Member, Board of Revenue Punjab, Lahore which were accepted vide judgment dated 27-2-1986 and the cases were remanded to the Additional Commissioner (Revenue), Gujranwala Division with the direction to thrash out the question regarding the character of suit land, who instead of deciding the case further remanded it to the Court of A.C./Collector, Gujranwala for thrashing out the point involved by making thorough inquiry as directed by the learned Member, Board of Revenue, Punjab. The A.C./Collector again decreed the suits vide, judgments dated 3-3-1993. The present petitioners filed appeals before the learned Additional Commissioner, Gujranwala, who also dismissed the appeals and aggrieved by the said order, the petitioners had filed 12 revisions petitions before respondent No,1, Member, Board of Revenue, Punjab, Lahore, who vide, his impugned judgment and decree dated 12-3-2003 dismissed the same and maintained the judgment of the learned lower forums.
5. Learned counsel for the petitioners contended that the land is situated within the Municipal limits of Hafizabad and it was not an agricultural property at the time of disputed sale. Respondent No,4- pre-emptor only got prepared Khasra Girdawari showing his cultivation of crop "Burseen" on some portion of the said property. Further contended that the finding of the Additional Commissioner of inspecting the site has no evidentiary value and placed his reliance on the case of Dr. Syed Altaf Hussain Bukhari v. Siddique Ahmed Chaudhry 1996 CLC 654. Further contended that at the time of sale, the property in dispute was not cultivable and its status was not of agriculture.
6. On the other hand, learned counsel for the contesting respondents vehemently opposed the arguments of the learned counsel for the petitioners contending that at the time of sale of the property, the pre-emptor respondent No,4 was cultivating the disputed land as tenant. He placed his arguments on the documents i.e, a copy of Khasra Girdawari pertaining to Rabi 1977 to Kharif 1978 as well as a copy Record of Rights pertaining to the year 1976-77.
7. 1 have heard the arguments of the learned counsel for the parties and perused the record.
8. The question that boils down for determination in these cases is whether the property is agricultural land and preemptible. In section 3(1) of the Punjab Pre-emption Act, 1913, the agricultural land has been defined as under:-- "'Agricultural land' shall mean land as defined in the Punjab Alienation of Land Act, 1900 (as amended by Act I of 1907), but shall not include the right of mortgagee, whether unsufructuary or not, in such land."
' Section 6 of the said Act, provides that a right of pre-emption exists in respect of agricultural land and village immovable property, but every such right shall be subject to all the provisions and limitations in this Act contained. It means that a preemptor has the right to pre-empt the property which is an agricultural land and village immovable property. According to subsection (3) of section 2 of the Punjab Alienation of Land Act, 1900, the expression "land" means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purpose or for purposes subservient to agriculture or for pasture; and includes--
(a) the sites of buildings or other structures on such land;
(b) a share in the profits of an estate or holding;
(c) any dues or any fixed percentage of the land revenue payable by an inferior landowner to a superior landowner;
(d) a right to receive rent;
(e) any right to water enjoyed by the owner or occupier of land as such;
(f) any right of occupancy; and
(g) all trees standing on such land.
' The different sales through registered sale-deeds in favour of the vendees/petitioners have been effected in the year 1978-79. The sale in favour of Muhammad Ishaq writ petitioner in Writ Petition No,7525 of 2003 had been completed through the sale-deed on 4-9-1978 and this Court has to determine that on the day of sale what was the status of the property in dispute.
9. While disposing of these cases vide, judgment dated 20-5-1985, the Additional Commissioner (Revenue), Gujranwala Division, Gujranwala had observed as under:-- "I have given my careful thought to the arguments addressed by the learned counsel for both the parties and have gone through the impugned order and record of this case. I also visited the site on 25-4-1985 in the presence of the parties and the Patwari. Patwari is also present today with the record. This is an admitted fact that the suit land is situated within the Municipal limits of Municipal Corporation, Gujranwala. It lies adjoining to the bypass connecting G.T. Road to Hafiz Abad Road.
The entire Khasra No,111 measuring 8 Kanals, out of which 6 Kanals are already under the Abadi. The appellant purchased residential plot out of the remaining 2 Kanals which has not been brought under cultivation after Rabi 1983. On the spot' I noticed that there are streets on the east and west of Khasra No,111. As far as suit land is concerned, it is enclosed by Abadi on the south and on the east as well. At this place a Mohallah known as Samanabad has developed having streets, electricity and other amenities of an urban town. I found the suit land lying vacant on the spot. This area is a part of the town having all the characteristics of a town."
' While passing the order on 22-2-1994, under remand order of the Member, Board of the Revenue, the successor Additional Commissioner (Revenue), had also visited the site. The relevant portion of his judgment is reproduced as under:-- "I myself visited and inspected the site on 14-2-1994 in the presence of the parties. Burseen, a fodder crop, was found standing on the suit land. The suit land was not the solitary plot of land over which fodder crop was standing. It was part of long stretched field over which Burseen was found standing. No street or road was demarcated on the suit land. The crop standing on the suit land was claimed by the respondent and this version of the respondent was not challenged no body came forward to say that Burseen was sown by him and not by the respondent."
10. There are contradictory findings by two Additional Commissioners (Revenue) with regard to the question in dispute. A Division Bench of this Court in case of Dr. Syed Altaf Hussain Bukhari v, Siddique Ahmad Chaudhry and another 1996 CLC 654 has observed that purpose for carrying out necessary inspection under Order 18, rule 18, C.P.C. Was only to help Court in understanding controversy and appreciating the evidence on record but inspection carried out by Court was neither substitute evidence nor it could supersede the evidence on record---Court was required to decide the matter on the basis of evidence and not merely on the basis of inspection carried out by the Judge unless there was specific agreement by parties to be bound by the decision rendered on the basis of personal inspection carried out by the Judge. Therefore, keeping in view the dictum laid down in this case, the personal observation of both the Additional Commissioners would not be the base for deciding the question of status of the property. The learned Member, Board of Revenue while passing the impugned judgment has passed his findings on the basis of observation made by Additional Commissioner, Gujranwala Sub-Division, Gujranwala vide, his order dated 22-2-1994. He while attaching the presumption of truth to such observations, has observed that nothing has been led to controvert such observation made by Additional Commissioner (Revenue).
11. Excluding the observation made by Additional Commissioner, this Court is legally bound to examine/evaluate/assess the evidence produced by the parties. Admittedly the sale in dispute was effected on 4-9-1978 when Rabi Crop was standing in the field. Certified copy of Record of Rights pertaining to the land in question Exh.D.3 shows that out of 8 Kanals of land 6 Kanals was "Ghair Mumkin Abadi" and 2 Kanals as "Null Chahi". Exh. D.4 copy of Khasra Girdawari pertaining to the year 1978-79 also indicates that the land of Khasra No 111 measuring 6 Kanals was Ghair Mumkin Abadi. Copy of Khasra Girdawari pertaining to the year 1981-82 also depicts that 6 Kanals of land as "Ghair Mumkin Abadi" Copies of Khasra Girdawaries for the years 1985-86 to 1988-89 also support the same position.
12. It is admitted position that me land was part of Mauza Loohi Wala, District Gujranwala, and vide, notification dated 31-7-1973, the limits of Municipal Corporation were extended and the suit land included in the urban area. This fact has not been denied by learned counsel for the respondent. It was the consistent view of the Courts up to the second decade of 20th century that the agricultural land remains as such. Reliance can be placed to the case of Hafiz Hasan Muhammad and 2 others v. Abdul Hameed and 2 others PLD 1982 SC 159. However, keeping in view the decision in some latter cases such as Abdul Rehman v. Haji Rashid AIR 1937 Lahore 182 and Ram Lal v. Muncipal Committee, Bhera and another AIR 1947 Lahore 3860, it was observed that where some portion of land is "Ghair Mumkin Abadi" and remaining is divided in small pieces of land for construction purposes, the land had become urban immovable property.
13. As discussed in the preceding paragraph that most of the portion of the Khasra No,111 is as Ghair Mimkin Abadi and the remaining land measuring 2 Kanals of land was divided by the owners into 12 plots and sold out for construction purposes. It is mentioned in the sale-deeds that some portion of the land was sold for construction purposes. After excluding the observation made by learned Additional Commissioner, in his judgment dated 22-2-1994, no other sufficient and convincing evidence has been produced by the pre-emptor to establish that it was an agricultural property and to support this stand of the petitioner, the assessment of land revenue to the land has also not been produced which is most important evidence to determine the status of the land as agricultural. From perusal of sale-deeds, it also reveals that the property though was originally part of estate of Loohiwala but after its inclusion within the Municipal limits, it become part of Muhallah Samanabad, Gujranwala which is sufficient proof that the suit land is situated within the urban area and surrounded by the buildings. The description of the property narrated in the sale-deed also makes it clear that Muhammad Sadiq respondent No,4 was also owner of the plots in this Abadi. Had Khasra No,111 been the agricultural then there would have been no mention of the plots vacant belonging to Muhammad Sadiq plaintiff/respondent No,4.
14. In Writ Petition No,9064 of 2003 titled as Muhammad Latif v. Member Consolidation, B.O.R. And others copies of Khasra Girdawari w.e.f, Kharif 1969-70 to Rabi, 1981 have been produced wherein the entry of 8 Kanals of the area has been mentioned out of which 6 Kanals has been shown as "Ghair Mumkin Abadi" and 2 Kanals in some time it was vacant without cultivation and some time some crops were sown. It is evident from the copy of Khasra Girdawari for the year 1985-86 that there is entry of 6 Kanals as "Ghair Mumkin Abadi" and 2 Kanals vacant land. The most important feature of the case is that the suit was firstly decreed on 28-6-1984. From the date of institution of the suit till the decree of the suit, there was an entry as Ghair Mumkin Abadi on 6 Kanals of land while the remaining two Kanals of land, there was entry of some cultivation at intervals. On the record, the plaintiff/respondent No,4 had produced copy of Khasra Girdawari Exh.P.1 from Kharif 1977-78 to Rabi 1982 and copy of Record of Rights pertaining to the year 1976-77 in support of his case while on the other hand, the petitioner/defendant had produced copy of Khasra Girdawari Exh.D.l, copy of Notification Exh.D.2 and Register Haq Daran Zamin Exh.D.3. From the minute scrutiny of the record, it reveals that there is an entry of 6 Kanals of land as Ghair Mumkin Abadi and 2 Kanals as Null Chahi in the Record of Rights for the year 1980-81, Exh.D.3. From the evidence produced by the petitioner, it has been established that at the time of institution and at the time of decree of suit, the property has ceased to be an agricultural property and has changed its status as urban.
15. The mode for determining the character of the property at the time of sale has been discussed in the case of Abdul Haq and 4 others v. Sardar Shah and others 1994 SCM R 1238. Relevant paragraph No,10 of the judgment is reproduced as under:-- "The learned Judge in Chamber has relied upon a recent judgment of this Court in the case of Nazir Abbas v. Manzoor Haider Shah PLD 1989 SC 568, wherein this Court has considered the following factors for deciding the character of the suit property:--
(i) The locality has been provided with water supply from the Town Committee.
(ii) It situates at a distance of one furlong from the Court.
(iii) Many houses including the house of a Councillor are found in the same locality.
(iv) The Town Committee has provided street lights in that locality.
(v) The Town Committee treated the property as urban property and charged tax on its transfer to the appellants.
(vi) That the Committee had given a contract for the construction of metalled lane in the Ward.
(vii) That the people of the locality got their ration quota from the urban quota.
' In another case Abdul Aziz (deceased) through L.Rs, v. Muhammad Hasan 1999 AC 153, the learned Judge of this Court observed that it is the status of the land and not the area in which it is situated, which would determine its status for purpose of pre-emption suit under section 15. Definition of "Agricultural land" given in section 2(3), Punjab Alienation of Land Act (1900) which applies to Punjab Pre-emption Act, 1913, makes it clear that reference is to the land itself and not to the surroundings. Consideration like inclusion of area in Municipal limits, application of all municipal taxes including property tax, connection of area with metalled roads, installation of factories adjacent and around the land in question would be entirely irrelevant consideration when land is used for agricultural or allied purpose and is preemptible.
16. In case of Bashir Ahmad and 3 others v. Mst. Naseem Fatima and 5 others 2001 CLC 1447, it was observed by a learned Single Judge of this Court that for the purpose of pre-emption land must be used for agricultural purposes or for pasture---land of the petitioner was not being cultivated since long nor same was assessed to land revenue and in spite of plaintiff's being co-sharer in Khata or owner in estate she did not possess superior right of pre-emption against the defendants.
In case of Aallah Bukhsh v. Illahi Bakhsh and 3 others PLD 1975 Lahore 359, the learned Single Judge of this Court also observed that Khasra Girdawari describing portion of land as Ghair Mumkin Abadi and alienation of small pieces of land made for construction purpose---land held obviously urban property-property having acquired colour of urban property onus, held, lay on pre-emptor to show existence of custom for pre-emption of such property.
17. The criteria as laid down by the Honourable Supreme Court in Nazir Abbas (supra) and Abdul Haq and 4 others (supra) is applicable to the present case. The Revenue Patwari appeared in the Court and stated that the locality/property in dispute has been supplied the facilities by the Municipal Corporation and it is the part of Muhallah Samanabad, Gujranwala. Since it is included in the area, therefore, a Councillor has also been elected and presently Muhammad Nazir is the Councillor of this Muhallah and also stated that Corporation has provided electricity to the inhabitants of the area and Corporation has considered the property as urban property. This evidence produced by the petitioners has not been controverted by the plaintiff/respondent No,4.
The petitioners have been successful in establishing their cases from documentary as well as by oral evidence that the suit property at the time of sale and institution of the suit was not agricultural land.
18. Most important feature of the case is that according to inquiry report there was some crop. Of "Burseen" over the land in dispute but neither the vendor/owner of the property in dispute appeared in the Court to prove the tenancy pf respondent No,4 nor any proof of land's revenue assessm ent is available on the record to show that the petitioner was a tenant under the owners of the land or paying land revenue. The evidence of plaintiff/respondent No,4 was not sufficient to infer that the property was agricultural property. There is no denial to the fact that the owners Were not using it as agricultural land because they have divided the suit property into 12 plots and all these plots were sold in favour of the petitioners. The tenancy of the respondent No,4/ plaintiff is also not t proved on the record.
19. The learned Member, Board of Revenue while passing the impugned order has only based his finding upon the inspection report of the Additional Commissioner (Revenue) and he miserably failed to discuss or take into consideration the evidence produced by the parties. The judgment of the Member, Board of Revenue is result of misreading/non-reading of important evidence which could affect the fate of the case. As to the judgment of Appellate Court/Additional Commissioner dated 22-2-1994, it is also evident that he has also not discussed the evidence of parties and gave finding on the basis of his own inspection report. It will not be out of place to mention ,here that there was no consent of the parties on the record that the Presiding Officer was asked to inspect the site and his inspection will be binding on the parties.
20. The word "judgment" has been defined in subsection (9) of section 2 of C.P.C., which means the statement given by the Judge on the grounds of a decree or order. It is settled preposition of law that the Judge will announce the judgment after evaluating and appreciating the evidence of the parties and Judge will give his decision for which issues have been framed, the Court shall state it findings or decision, with the reasons therefore, upon each separate issues, unless the finding upon any one or more of the issues is sufficient for the decision of the suit.
21. The Additional Commissioner himself inspected the site and at his own. Inspection based his finding which would mean that he himself assumed the role of witness. If he is a witness then cannot be a Judge and if he is a Judge then he is not a witness. The inspection can only be made in the light of the dictum as laid down in the case of Dr. Syed Altaf Hussain Bukhari (supra). In the instant case the Additional Commissioner while passing the impugned judgment against the present petitioner, at his own observation gave the finding which is nullity in the eye of law. This legal aspect of the case has not been attended to by both the Additional Commissioner as well as Member, Board of Revenue and the judgment passed by the Member, Board of Revenue is not sustainable in law.
' Additional Commissioner as well as Member, Board of Revenue are set aside and the suits filed by the plaintiff/ respondent No,4 are dismissed with costs throughout.