ABDUL AZIZ Versus Sheikh FATEH MUHAMMAD

MUHAMMAD NAWAZ ABBASI, J.-- - This appeal by leave of the Court has been directed against the judgment, dated 19-6-2002 passed by a learned Judge in Chambers iu the Lahore High Court, Lahore in a civil revision arising out of a pre-emption suit. Leave was granted vide order, dated 4-3-2002 as under:

"Through this petition under section 185(3) of the Constitution leave to appeal has been sought against the judgment and decree, dated 19-6-2002 passed by a learned Judge in Chambers of the Lahore High Court in Civil Revision No.3236 of 1996 whereby the judgment and decree, dated 4-1-1996 of the learned District Judge, Bhakkar affirming the judgment and decree of the learned trial Court dated 30-1-1995 dismissing the respondents pre-emption suit were set aside and the suit was decreed.

(2) The pre-emption suit brought by the respondent pertained to a sale transaction through which the petitioner had purchased land measuring 8 Kanals, 9 Marlas, comprised in Khasra No.2256 and situated in Bhakkar Municipality, for an ostensible price of Rs.3,00,000. After a hot contest, the suit was dismissed with costs by the learned trial Court mainly on the grounds that the requisite Talbs were not duly made by the pre-emptor and the suit-land being immovable property situated in the urban area within the limits of the Bhakkar City was not pre-emptible under section 2(a) of the Punjab Pre-emption Act, 1991. The appeal preferred by the pre-emptor was dismissed by the learned District Judge, Bhakkar. However, the ensuing civil revision was accepted by a learned Judge in chambers of the Lahore High Court, the judgments and decrees passed by the two Courts below were set aside and the suit was decreed with the observations that Talb-i-Muwathibat as well as Talb-i-Ishhad were made by the pre-emptor in accordance with the prescribed procedure and law and the suit-land was not exempt from pre-emption under section 2(a) of the Punjab Pre-emption Act, 1991.

(3) After hearing the learned counsel for the petitioner at length we are 'inclined to grant leave to consider the following contentions : --

(i) Concurrent findings of fact recorded by the learned trial Court and the learned appellate Court on the fulfilment of Talbs were interfered with by the High Court in revisional jurisdiction without pointing out any misreading or non-reading of evidence.

(ii) The suit-land being situated within the Municipal limits of Bhakkar City was "immovable property" as defined in section 2(a) of the Punjab Pre-emption Act, 1991 and as such was immune from pre-emption at the time of its sale on 29-3-1992 and the said provision was declared repugnant to the injunctions of Islam by the Shariat Appellate Bench of this Court with effect from 31-12-1993.

(3) Status quo shall be maintained till the disposal of the appeal."

2. The land measuring 8 Kanals, 9 Marlas was sold to Abdul Aziz, appellant in the present appeal vide Mutation No.947 dated 29-1-1992 and the sale was pre-empted by the respondent herein, on the ground of common right of passage and irrigation. The suit was contested by the appellant mainly on the ground that the land falling within the limits of Municipal Committee, Bhakkar was not pre-emptible and that the requirement of Talbs for exercise of right of pre-emption was also not fulfilled in accordance with law. The learned Senior Civil Judge, Bhakkar having come to the conclusion that neither suit-land was pre?emptible nor plaintiff fulfilled the essential conditions of Talb-i-Muwathibat and Talb-i-Ishhad for exercise of right of pre-emption, dismissed the suit vide judgment, dated 30-1-1995 and appeal filed by the pre-emptor. was also dismissed by the learned District Judge vide judgment, dated 4-11-1996. However, the learned Judge in Chambers in the High Court reversed the concurrent findings of the two Courts on the above question in the civil revision filed by the pre-emptor with the observation that the land subject-matter of sale, being an agricultural land, was not exempted from law of pre-emption and that the requirement of Talbs for exercise of right of pre-emption was also fulfilled by the pre-emptor in accordance with law and accordingly allowed the civil revision.

3. Learned counsel for the appellant has contended that notwithstanding the provision of Punjab Alienation of Lands Act, 1900 or any other law for the time being in force, the suit-land being falling within the municipal area was exempted from the law of pre-emption in terms of section 2(a) of Punjab Pre-emption Act, 1991 read with General Clauses Act, 1897, wherein it has been provided that immovable property means immovable property which is situated in any area other than an urban area or within cantonments limits as declared by any law relating to the local bodies or cantonment as the case, may be for the time being and the High Court was misdirected in holding that the suit-land being of agricultural character, was subject to the law of pre-emption. The learned counsel has submitted that discrepancies regarding the date of performance of Talb-i-Muwathibat and omission of the name of informer in the plaint or in the notice of Talb-i-Ishhad, would be of no consequence.

4. Learned counsel for the respondent on the other hand placing reliance on the observations made by the learned Judge in the High Court submitted that in the light of definition of land in the Punjab Alienation of Lands Act, 1900, the location of agricultural land in the municipal area would not change its character and by mere reason of its territorial location in the town, it would not be immune from law of pre-emption. The learned counsel placing reliance on Hassan Muhammad v. Abdul Hameed PLD 1982 SC 159 wherein this Court while interpreting the provisions of section 7 of Punjab Pre-emption Act, 1913 held that agricultural land would not be excluded from the purview of Punjab Pre-emption Act, 1913 merely on account of its inclusion in urban area", submitted that no exception can be taken to the judgment of the High Court.

5. The learned counsel for the appellant on the 'question of performance of Talbs, has contended that the Court of first instance as well as the Appellate Court have concurrently held that pre-emptor having not been able to fulfil the essential requirements of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law could not exercise the right of pre-emption and maintain the suit whereas, the learned Judge in the High Court reversed the concurrent findings of the two Courts on the above issue with the observation that the contradiction or discrepancy regarding the date of performance of Talb-i-Muwathibat would have no material effect as the performance of this Talb could be proved on the basis of sole statement of pre-emptor and he was not obliged to produce any other evidence to prove Talb-i-Muwathibat. It was also observed that the date and place of making this Talb or mentioning of the name of informer in the plaint was not necessary.

6. The learned counsel for the appellant placing reliance on the judgments of this Court on the subject, contended that without proof of date of performance of Talb-i-Muwathibat, the performance of Talb-i-Ishhad cannot be proved in accordance with law, therefore, non-disclosure of name of the informer in the plaint or in the notice of Talb?i-Ishhad, would negate the claim or pre-emptor regarding performance of the Talbs in terms of section 13 of Punjab Pre-emption Act, 1991 and consequently, the right of pre-emption would be defeated.

7. The essential questions in terms of leave granting order requiring determination would be firstly, whether the High Court without pointing out misreading or non-reading of evidence could interfere in the concurrent findings of the two Courts on the question of non-performance of requirement of Talbs in its revisional jurisdiction, secondly whether the suit-land being situated within the Municipal limits of Bhakkar, would not acquire the status of urban immovable property and would remain subject to law of pre-emption and thirdly, what would be the effect of the judgment of the Shariat Appellate Bench of this Court by virtue of which section 2(a) (ibid) was declared repugnant to the Injunctions of Islam to the extent of restriction on the pre-emptibility of urban immovable property w.e.f. 1-12-1993.

8. The plaintiff' pre-emptor in para.4 of the plaint pleaded as under:

9. The vendee/defendant in the written statement controverted the averments of the above para. with the assertion that pre-emptor having knowledge of the transaction refused to purchase the land and was thus, estopped by his conduct to file the suit and further pre-emptor has not been able to prove the performance of Talbs in accordance with law to exercise of right of pre-emption. This may be seen that if the pre-emptor does not disclose the name of person who informed him about the sale, in the plaint, he may not be successful in proving performance of Talb-i-Muwathibat on the basis of' his oral assertion in his statement before the Court regarding knowledge of sale on the date on which he claimed performance of the first Talb may not satisfy the requirement of law. The fact that pre-emptor had no knowledge of transaction before a particular date, need not to be proved by him but if the pleading is silent about the source of information, the pre-emptor may not be successful in proving the performance of the first Talb in accordance with law and in the present case, we find that source of information was not disclosed in the plaint rather subsequently a witness was produced to prove the knowledge of plaintiff regarding sale on the date on which he claimed to have made announcement for filing the suit. The law is that without fulfilment of the performance of 'laths, the right of pre-emption is defeated and without proving the performance of Talb-i-Muwathibat in strict compliance of the law, the right of pre-emption cannot be activated, whereas in the present case, we find that two Courts after detailed scrutiny of the evidence of the parties concurrently held that the pre-emptor failed to prove the fulfilment of the requirement of' Talbs to the entire satisfaction of the law but the learned Judge in the High Court having reappraised the whole evidence in civil revision, substituted the concurrent findings of two Courts on the issue in complete departure to the settled principle of law that concurrent findings on a question of tact or mixed question of law and fact, cannot be disturbed in civil revision unless the same are found based on conjectures, presumptions, misreading or non-reading of material evidence or erroneous assumption of facts, patent error of law, arbitrary exercise of power or perverse view of the evidence. The interference in the concurrent findings on the controversial question of facts or mixed question of law and facts in the revisional jurisdiction for mere reason that another view of the evidence would also be possible is not proper.

In pre-emption suit without pleading the source of information and performance of Talbs in the plaint, the pre-emptor may not be in a c position to prove the knowledge of sale on the date on which he claimed to have made Talb-i-Muwathibat. This Court.. no doubt in Noor Muhammad v. Abdul Ghani 2000 SCMR 329 has observed that the pre-emptor is not required to give name of the witness in the plaint as the facts required to prove through evidence need not to be specifically mentioned in the pleadings but without pleadings the basic facts, it is not possible to lead evidence on such facts and for exercise of right of pre-emption, performance of Talbs is the basic fact and not merely a formality, therefore, the pre-emptor must specifically plead and prove the performance of Talbs strictly in accordance with law to maintain the suit. Talb-i-Muwathibat is the foundation for exercise of' right of pre-emption and without proving its performance strictly in accordance with the spirit of law, the performance of second Talb i.e. Talb-i-Ishhad cannot be successfully established to succeed in the suit.

10. The provision of Punjab Pre-emption Act, 1991 relating to law of pre-emption in respect of the exemption of urban immovable property was challenged to be repugnant to the Injunctions of Islam before the Federal Shariat Court and ultimately Shariat Appellate Bench of this Court in Muhammad Shabbir Ahmad Khan v. Government of Punjab Province PLD 1994 SC 1 held "that exemption of all immovable properties situated in urban areas does not fulfil the requirement of Zaroorat on the basis of which in Shariah a particular property is exempted from the application of law of pre-emption and section 2(a) of Punjab Pre-emption Act, 1991 is repugnant to Injunctions of Islam to the extent, to which it excludes all urban immovable properties situated in the Municipal and Cantonment limits." The judgment had to take effect from 31-12-1993 and after the target date the sale in respect of all immovable property situated in urban area, would no longer be exempted from the right of pre-emption. However, the sale of land in the present case took place in 1992 and suit was also filed in the same year, therefore, notwithstanding the passing of the decree after the target date, the pre-emptor having no right of pre-emption on the date of sale and on the date of filing the suit could not maintain the suit and therefore the judgment referred above having no retrospective effect would have no application to the transaction in the present case.

11. There is no cavil to the proposition raised by the learned counsel that notwithstanding the bar contained in section 2(a) of Punjab Pre-emption Act, 1913, the sale in the present case, in the light of definition of immovable property under Punjab Alienation of Lands Act, 1900, the agricultural land situated in the municipal area may not be covered by the expression immovable property situated within municipal limits or cantonment area for the purpose of Punjab Pre-emption Act, 1991 but the question whether land is agricultural or urban immovable property being a question of fact, must be proved through evidence in the light of law laid down by this Court in Hassan Muhammad v. Abdul Hameed PLD 1982 SC 159 wherein it was held that agricultural land merely on account of being located in an urban area would not be excluded from the purview of law of pre-emption the sale of such land may not be exempted from law of pre-emption.

12. The expression "immovable property" used in section 2(a) of Punjab Pre-emption Act, 1991 in general terms includes agricultural land situated in urban area within the limits of Municipal Committee or cantonment. This section provides as under: ""immovable property" means immovable property situated in any area other than an urban area or within cantonment limits as declared by any law relating to Local Bodies or Cantonments, as the case may be for the time being in force."

13. In the plain words, all immovable properties including agricultural land situated within municipal limits or cantonment area stand exempted from law of pre-emption under Punjab Pre-emption Act, 1991 whereas the agricultural land from very inception despite being located in the municipal or cantonment area may not be exempted from law of pre-emption as it after becoming part of town may not necessarily lose its agricultural character. However, unless it is otherwise proved, the presumption would be that land after becoming the part of municipal area or cantonment has acquired the status of urban immovable property and was no more subject to the law of pre-emption therefore, the pre-e mptor would be under heavy burden to prove that land even after becoming part of town was retaining its agricultural character for the purpose of law of pre-emption.

14. The agricultural land located in urban area may or may not acquire the status of urban immovable property and change its character to claim exemption from law of pre-emption but mere fact that before the inclusion of agricultural land in the cantonment area/municipal limits the land was subject to law of pre-emption would not ipso facto be an evidence of its retaining the agricultural character rather it is to be specifically proved through the evidence that notwithstanding the inclusion of land in the town, it has not changed its character from agricultural land to that of urban immovable property and was subject to the law of pre-emption. The true test to determine the question of character of land, is the use of land located within the boundaries of municipal area and cantonment to bring or exclude it from the purview of pre-emption law therefore, the contention of the learned counsel for the respondent that the land having been sold with reference to Khasra Numbers through mutation would be treated as agricultural land and no other evidence would be required to prove its agricultural character has no substance. The sale of land with reference of Khasra Number through mutation or it being assessed to land revenue would not be sufficient to hold that the land notwithstanding located in the municipal area or cantonment was still holding its agricultural character. The retention of H Khasra numbers of the agricultural land after its conversion into urban immovable property, in the Revenue Record for collateral purposes may not be a conclusive evidence to hold that land was agricultural and was subject to law of pre-emption.

15. There is no cavil to the proposition that the land subject to its use and character located in an urban area may not be exempted from operation of law of pre-emption and presumption that all immovable properties including agricultural land, situated in urban area of municipal committee or cantonment would be exempted from operation of law of pre-emption, is rebutable as the location of land by itself may not be al conclusive proof of its character.

16. The suit-land is certainly located within the municipal limits and vendee in addition to the placing on record the notification by virtue of which the revenue estate in which land is situated, was included in the municipal area has also produced evidence in support of the fact that land was being used for residential purpose and has lost the agricultural character whereas pre-emptor on the basis of mutation of sale and Khasra No. of the land mentioned therein has pleaded that it was agricultural land. The conclusion of the two Courts on the above controversial question of fact was that at the time of sale, land had changed its character and it was no more an agricultural land, but the High Court taking a contrary view, held that notwithstanding the location of land within the municipal limits, it was being recognized as agricultural character and would not be exempted from the law of pre-emption.

17. This is not disputed that agricultural land despite becoming part of town, may not change its character but the question whether a particular land having become part of town, has not changed its character is a pure question of fact and burden of proving this fact, would be on the pre-emptor who claimed right of pre-emption. The presumption regarding' the agricultural character of land cannot be raised for mere reason that before becoming part of town it was agricultural land rather the presumption would be that after becoming part of municipal or cantonment area, it has acquired the status of urban immovable property.

18. This is correct that the right of pre-emption is predatory in nature and grant or refusal of such right may not depend on compliance or non-compliance of technicalities of procedural law but at the same time it being a piratical right, the pre-emptor must establish the existence of right of pre-emption on the date of sale, on the date of institution of suit and on the date of passing the decree and must also fulfil the essential condition of Talbs for exercise of right of pre-emption.

19. After hearing the learned counsel for the parties and perused the record with their assistance we have not been able to find out any factual or legal defect or infirmity in the concurrent finding of two Courts subordinate to the High Court, calling for interference of the High Court in its revisional jurisdiction.

20. In the light of foregoing reasons we set aside the judgment of the High Court and allow this appeal with no order as to the costs.

M.H./A-89/SC ???????????????????????????????????????????????????????????????????????????????????? Appeal allowed.