KARAMAT HUSSAIN SHAH Versus KHUDA BAKHSH
A registered sale‑deed dated 9‑4‑1975 with regard to 27 kanals 11 marlas of agricultural land situated in village Sheikhpur, tehsil and district Rawalpindi, since included in district Islamabad, executed in favour of the petitioner for an ostensible price of Rs.22,000 was sued out on 26‑3‑1976 to be pre‑empted by the respondent on the grounds of being an owner of the estate and also a co‑sharer in the Khata thereof. Petitioner contested the suit by denying the claim of the plaintiff and also raising a number of preliminary objections which included the assertion that the sale made in his favour is not pre‑emptible for the reason of his being a displaced person from Islamabad and exemption on that account granted by means of Notification No.2771‑76/1060‑I. R. III, dated 15‑6‑1976 issued by the Board of Revenue, Punjab under Section 8 (2) of the Punjab Pre‑emption Act, 1913. The relevant portion whereof may be reproduced with advantage as hereunder:‑---- "the Board of Revenue is pleased to declare that in the districts of Campbellpur, Rawalpindi and Jhelum no right of pre‑emption shall exist, for a period of two years with respect to the sale of agricultural land not exceeding 121 acres of canal irrigated area or 50 acres of un‑irrigated area and other immovable property not exceeding the market value of Rs.10,000 (Ten thousand only) in favour of a person displaced on account of construction of the Capital at Islamabad and certified to be so displaced by the Capital Development Authority, Islamabad."
Pleadings of the parties gave rise to a total of eight issues, inclusive of the relief, whereof issue No.4 related to the superior right of pre‑emption, issues Nos.5 and 6 were framed to respectively determine the sale‑price and market‑value of the suit land and issue No.7 covered the question of pre‑emptibility of the sale. Parties led the evidence for and against the respective pleas wherein the vendee, in addition to relying on the relevant notification, produced a certificate dated 12‑7‑1979 (Ex.D.9) issued by the Assistant Director (Lands), Capital Development Authority, to certify that he is an oustee from Islamabad and he himself appeared as D.W.3 to depose to his land in village Sheikhpur having been acquired by the C. D. A. but admitted that he continues to reside in his ancestral house situated in the village. Such was also his address entered in the sale‑deed and the written‑statement.
Learned trial Judge attended to the foregoing and while noticing that the notification gave protection to the sale made in favour only of a person displaced on account of construction of the Capital who is also certified by the C . D . A . to have been so displaced, came to be of view that whereas the expression 'displaced' had to be understood in its ordinary meaning on account of absence of its definition in the notification, its use with reference to a person would mean only that person who has been expelled, removed or dislodged from his habitual place of residence in consequence of the construction of the Capital at Islamabad and since it stood admitted by the vendee himself that he continues to live, as before, in the same house whereabout there was neither any award made for acquisition nor any compensation paid, therefore, he could not be considered a displaced person and muchless on account of establishment of the Capital inasmuch as even the certificate Ex.D.9 does not so certify. In consequence, learned trial Judge held that the vendee had not been shown to be eligible for the protection afforded by the notification and upon deciding the other issues in favour of the plaintiff, decreed his suit by his judgment dated 23‑11‑1981.
2. An appeal thereagainst filed by the vendee‑defendant was heard by an Additional District Judge at Islamabad before whom trial Court's findings were contested with regard only to the issues relating to the pre‑emptibility of the land and the sale‑price. He reconsidered the evidence and affirmed the findings of the trial Court on both the issues to dismiss the appeal by his judgment dated 27‑4‑1986. Vendee has now come up to this Court on revision.
3. Pleas already dealt with by the two Courts below to reach their concurrent findings on both the issues have simply been reiterated before me. On the record of the suit is, among others, an application dated 13‑12‑1976 submitted by the petitioner to the Deputy Commissioner (Lands), Islamabad for grant of certificate with regard to acquisition of his lands in village Sheikhpur. At its back, an endorsement dated 19‑12‑1976 appears made by the Assistant Director (Lands), C.D.A., Islamabad as under:‑
"According to the report of field staff only the landed property has been acquired of the applicant."
This is Ex.D.8 and there also is a certificate (Ex.D.9) dated 12‑7‑1979 issued by the same functionary as under:‑
"Certified that Mr. Karamat Shah s/o Gul Hussain Shah of village Sheikhpur, Tehsil and District Rawalpindi is an oustee of Islamabad."
In order to take the benefit of the protection provided by the afore‑cited notification the petitioner had to show not merely that he had been displaced on account of the establishment of the Capital at , Islamabad but he had also to be certified to have been so displaced.
However, the certificates Exhs. D.8 and D.9 do not meet the requirements. Although the word 'oustee' has a much wider import than the expression 'displaced person' so that the latter would be included in the former, yet, on his own admission the petitioner made in his statement as D.W.3, he is not an oustee of Islamabad inasmuch as he continues to live in his old habitat. Whereas the term 'oustee' has reference to a person who has had to leave a certain place, the petitioner had admittedly not left his village since included in the territory of Islamabad. It has not been denied that the vendee‑petitioner is still living in his ancestral house in village Sheikhpur and the same is also his address given in this Civil Revision. Implications of displacement in the context of being a displaced person have been judicially considered with reference to similar notifications issued in identical circumstances with regard to acquisitions made for the purposes of Mangla Dam and Chashma Barrage projects which stand respectively reported as Ghulam Rubani and others v. Maqbool Khan and others P L D 1971 A J & K 68 and Amin Abdullah v. Commissioner, Sargodha 1981 CLC 680. Therein views have been expressed to the effect that persons who continue to live at their habitual places of residence cannot be considered displaced persons on account merely of partial acquisition made with regard only to their lands.
Even if a construction most favourable to the petitioner is placed on the certificate Ex. D . 9 to accept the word 'oustee' used therein as synonymous with the expression 'displaced person' appearing in the notification, even then another serious short coming of his case which gets surfaced is that whereas the certificate is dated 12‑7‑1979 the sale in his favour had taken place already on 9‑4‑1975. In order to sustain his plea that the notification provides protection to the sale made in his favour, the petitioner had to establish that the said sale had in fact been made in favour of such a displaced person even certified to be so but there is no evidence pointed out to have been brought on the record to establish that the vendee petitioner was such a displaced person at the time of acquiring the sale and had also been so certified on that date. Since there is a gap of more than four years between the dates of sale and the certificate Ex.D.9 which does not even purport to be referable to any antecedent period, therefore, it is not possible to refer the certificate back to the time of the sale sought to be pre‑empted. Contention of the petitioner fails thus.
4. The only other contention raised before me relates to sale price and the market value of the land inasmuch as the petitioner is not satisfied with the award to him of Rs.17,764 as the price of the land in suit. No part of the ostensible dale price of Rs.22, 000 entered in the sale‑deed (Ex,D.3) was paid before the Sub‑Registrar before whom it was simply admitted to have already been paid. The vendee‑petitioner claimed in his statement made and D.W.3 that the bargain for the sale was struck in the village some ten days before the execution of the sale‑deed and the entire consideration was paid to the vendor Sikandar in the village without any receipt or other writing obtained in this behalf and neither Sikandar was himself brought to the witness‑box nor was any other witness produced to, depose to either the fixation in good faith of the sale‑price at Rs.22,000 or actual payment thereof. The two Courts below have refused to go by the uncorroborated testimony of the vendee to concurrently answer the relevant issue No.5 against the vendee‑petitioner. These findings relate to a question of pure fact and are justified on the record inasmuch as there is no illegality or error of jurisdiction pointed out to have been committed in reaching these findings which have, therefore, to be treated as sacrosanct for the purposes of exercise of revisional jurisdiction. As regards the market value of the land, in view of the category of the suit land recorded as 'Maira', the trial Court accepted the acquisition price of Rs.640 per kanal to be correct and liable to be preferred to the statement of average of five‑yearly sale‑prices because the same did not provide a safe guide in view of non‑inclusion therein of a large number of sales. Market value of a property is again a question of pure fact and in its having been determined in one way on the basis of record, there does not emerge any case for interference in exercise of revisional jurisdiction on the ground merely that the other evidence provided by the five‑yearly average was more favourable to the vendee or that it may have been preferred over the one relied upon below. It is the exclusive field of the trial and first appellate Courts to either way determine a question of fact and so long as their findings thereabout are based on the record, they cannot be interfered with even in a second appeal on the ground either that a view to the contrary is also possible to be reached on the basis of the same evidence or that one set of evidence may have been preferred over the other one which is actually preferred by the Courts below for such reasons as do not disclose any disregard or violation of rules of appreciation of evidence and scope of revision is much more restricted, being limited only to correction of errors of jurisdiction, there is no scope for interference with their findings with regard to market value. Contention of the learned counsel cannot hence be sustained and is accordingly repelled.
5. Result of the foregoing is that there is not made out any case for exercise of revisional jurisdiction. Hence, dismissed with costs.
A . A . / K‑76/ L Revision dismissed.