ALLAH BAKHSH Versus ELLAHI BAKHSH

There have been two alienations of land measuring 10 marlas each by registered sale-deeds dated 22nd June 1956 and 6th June 1957, for Rs. 2,500 and Rs. 6,000 respectively. The disputed land is situated on Chah Chotiwala Mauza Taraf Mubarik Awal in the city of Multan. These sales were challenged by two suits for possession by way of pre-emption filed on 22nd June 1957. Both the suits were decreed : Suit No. 201 on 18th December 1958 and Suit No. 385 on 19th December 1959. The appeals were dismissed by the learned Additional District Judge, Multan, by his separate judgments each dated 14th October 1959. Hence these two Regular Second Appeals Nos. 109 and 110 of 1960.

2. Both the Courts below have come to a concurrent finding of fact that the land in dispute is agricultural property though there is ample evidence on the record to show that it is situated within the municipal limits, houses but on either side, there are streets, metalled roads, drainage system and sweepers of the Municipal Committee clean the streets. Civil Courts are visible from the land in dispute. The Courts below also relied on khasra girdawaris and sale deeds in coming to the conclusion which they did.

3. Complicated question involved in these two appeals is as to whether the land in dispute is agricultural or urban immovable property as defined in section 3 of the Punjab Pre-emption Act. Mr. Iftikharul-ul-Haq Khan learned counsel for the appellant has cited at the bar Muhammad Din v. Shah Din and another 1907 P R 90 Shankar Das v. Mathra Das and another A I R 1920 Lah. 388Diwan Chand v. Nizam Din and others A I R 1924 Lah. 622(1)Sheikh Abdul Rahman and another v. khan Sahib Haji Rashid Ahmad and another A I R 1937 Lah. 182Lala Khazanchi Shah v. Haft Niaz Ali A I R 1940 Lah. 438and Lal and others v. Muhammad Sharif P L D 1961 Lah. 47and argued that the property in dispute is urban immovable property and for this purpose there is ample evidence on the record which has been discussed by the .Courts below. The sale deeds though in the headnote describe the property as "zarae arazi" but in the body thereof description is not that of an agricultural property. Khasra girdarwaris, which have been relied upon, clearly show that a portion of the property is ghair mumkin abadi whereas the other portion was under cultivation. This question is not a question of fact which is binding on this Court in second appeal but it is a question of law. Two of the cases cited above clearly support his version. On the other hand Mr. Sardar Shah Bokhari learned counsel for the respondents vehemently controverted the arguments raised and submitted that this being a concurrent finding of fact is binding on this Court. In support of his submission he cited Wall Muhammad and others v. Muhammad Bakhsh and others I L R 11 Lah. 199, Abdul Majid and others v. Khalil Ahmad P L D 1955 P C 38 Pathana v. Mst. Wasai and another P L D 1965 S C 134, Mst. Allah Rakhi v. Mst. Sakina BIN and others P L D 1968 Lah. 1087 and Sikandar Hayat and others v. Master Fazal Karim P L D 1971 S C 730 He further argued that the question whether the property is agricultural property or urban immovable property is a question of fact and not a question of law. The trend of the authorities cited by him shows that it is immaterial whether the agricultural property has become a part of a developing town and some construction has been raised in the vicinity .for conversion of the property into urban immovable property. He insisted in his plea that the character of the land would still remain the agricultural property subject to the right of pre-emption available to an agriculturist. He supported his arguments by presenting Jiwa v. Buta and others 1912 P R 26 Gandu Singh v. Natha Singh and others 1907PR12, Salamat Rai Kanshl Ram and others 1918PLR30, Imam Din v. Mahka and others 1891 P R 62, Umar Bakhsh v. Abdul Karim and others 1898 P R 70, Diwan Chand v. Nizamdin and others (1), Gopi Mal and another v. Muhammad Yasin and another A I R 1924 Lah. 657 A I R 1923 Lah. 443 and L. Ram Rup v. Dadp Singh and others A I R 1937 Lah. 284. Lastly he submitted that khasra girdawari is admissible in evidence and cited Mst. Nur Jahan Begum v. Muhammad Ahsan Ullan Khan and others P L D 1960 Lah. 181 and Mansur Raza and others v. Mst. Syrria Begum P L D 1966 Lah. 1059. The former relates to evidentiary value of Jamabandi while the latter to the admissibility of khasra girdawari. From the case-law cited at the bar it is abundantly clear that the Punjab Chief Court and subsequently the Lahore High Court up to the second decade of twentieth century continued with the consistent view that the agricultural property remains as such irrespective of the fact that it falls within the municipal limits or some construction is raised in the vicinity. But the trend from the third decade underwent a radical charge. In Sheikh Abdul Rahman and another v. Khan Sahib Haji Rashid Ahmad and another A I R 1937 Lah. 182 a Division Bench adopted the view that if on the agricultural land building scheme is introduced and the municipal area is extended then its character ceases as agricultural. Reliance was also placed in this judgment on Hanse Nath and others v. Ragho Prasad Singh A I R 1932 P C 57 and Hayat Bakhsh v. Mansabdar Khan and others A I R 1935 Lah. 529. This view was adopted in Lala Khazanchl Shah v. Haji Niaz Ali and Lal and others v. Muhammad Sharif. As late as 1920 it was found by this Court in Shankar Das v. Mathra Das and another that the question whether a place is a town or a village for the purposes of the Pre-emption Act is one of law and therefore a second appeal lies in respect thereof. This view has been followed in other cases as well as in Lal and others v. Muhammad Sharif. The question that the two Courts below have concurrently found the property as agricultural land is, therefore, hardly material. Once this Court is faced with a question of law in second appeal the interference can be made for its true interpretation. The property having adopted the colour of urban immovable property the: onus lay on the pre-emptor to show that custom of pre-emption for urban immovable property also existed in that area. Learned counsel for the respondent is unable to refer to any such evidence on the record. He, however, reiterated his stand by the submission that since the land in dispute is described as agricultural land in the revenue records and in the headnotes of the sale deeds the property is pre-emptible as agricultural land. I have already discussed that the khasra girdawari also describes a portion of the land as ghair mumkin abadi and the perusal of the sale-deeds and area mentioned therein obviously goes to show that the alienations were for small pieces of lands for construction purposes. The land in dispute, therefore, is obviously urban immovable property.

4. The upshot of the discussion results in the acceptance of the two appeals with consequential result of the dismissal of the suits. Since the question involved in the two appeals was a complicated question of law the parties are left to bear their own costs.

5. Before parting with the case I must pay my compliments to both the counsel who eminently assisted this Court with the case on the subject.

S. A. H. Appeals accepted.