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First Appeal from Original Order No. 29 of 1982, decided on 4th May, 1982.

‑‑ Ss. 16 & 15‑Pre‑emotion‑ Residential property' and 'Agri cultural property'. held, pre‑emptible within meaning of Ss. 16 & 15 of Act respectively.

Mian M. Zafar Yasin for Petitioners.

The facts leading up to this First Appeal in brief are that Ghulam Rasul and three other appellants purchased the suit land measuring two Kanals for Rs. 6,000 from Siddique Ali respondent No. 2 through registered sale deed on 7th May, 1970. Yaseen respondent No. 1 filed a suit for preemption basing his superior right on the ground that he was collateral and co‑owner in the village. The appellants contested the suit by raising preliminary objections and denied the averments of the plaint. The pleadings created the following issues

(1) Whether the plaintiff has superior right of pre‑emotion ''‑

(2) Whether the plaintiff has waived his right of pre‑emption

(3) Whether the sum of Rs. 6,000 was fixed in good faith or actually paid at the time of sale

(4) If issue No. 3 is not proved, what was the market value of the suit lands

(5) Whether the defendant has made some construction on the suit land, if so whether he is entitled to receive any compensation

(5‑A 1) Whether the suit land is not pre‑emptible

(6) Relief.

2. The learned trial Court found issue No. 1 in favour of respon dent No. 1 pre‑emptor, that he had a superior right of pre‑emption. Issue No.2 was decided against appellants/defendants. Issue No. 3 was decided in favour of the appellants and it was held that the suit land was sold for Rs. 6,000. In view of the findings on issue No. 3, the finding on issue No. 4 was no more necessary. Issue No. 5 was decided against the appellants/ defendants. Issue No. 5‑A was decided against the re3pon dent No. I/plaintiff holding that the suit land has acquired the colour of urban immovable property and that the plaintiff failed to prove the existence of custom of pre‑emption in the locality. In view of this finding the learned trial Court dismissed the suit. Aggrieved by the judgment and decree of the trial Court. Yaseen respondent No. I filed an appeal before the learned District Judge, which was entrusted to the learned Additional District Judge for disposal. Before him the finding of the learned trial Court on issues Nos. 5 and 5‑A were challenged. On issue No. 5‑A the learned Additional District Judge, while holding that the suit land was agricultural one at the time of the sale, held that respondent No. 1/appellant therein had right to pre‑empt. He accordingly set aside the finding of the trial Court on issue No. 5‑A. Resultantly, he accepted the appeal, set aside the judgment and decree of the trial Court and remanded the case to the trial Court with the direction to call for the parties to produce their respective evidence as to the costs of the construction raised on the suit land and thereafter decide issue No. 3 afresh.

3. The learned counsel for the appellants submits‑

"(i) that the finding of the learned Additional District Judge in para. No. 5 of his judgment that the contention of the appellants therein that issue No. 5‑A having not arisen out of the pleadings was redundant one, has a force" is factually incorrect inasmuch as in written statement the objection has been taken td the effect that the suit land was not an urban immovable property ;

(ii) that there was no justification to remand the case.

I had attended to the arguments presented by the learned counsel with care and gone through the pleadings. In written statement I do not find any objection as to the pre‑emptibility of the suit land. It has not been stated therein that the suit land either by its nature or by its locality was not pre‑emptible. In the written statement it has only been mentioned that the vendees had raised constructions upon the suit land. In para. No. 4 of the written statement it has been stated that ;

I am afraid this did not give rise to issue No. 5‑A, i.e. whether the suit land is not pre‑emptible Simply, because it was a residential property, does not mean that the same was not pre‑emptible. A residential property is also pre‑emptible within the terms of section 16 of the Punjab Pre‑emption Act whereas, the agricultural land can be pre‑empted in accordance with section 15 of the said Act. The discussion of the learned Additional District Judge is well reasoned. He has rightly remanded the case to the trial Court.

For what has been stated above there is no force in this first appeal and the same is hereby dismissed in limine.

Appeal dismissed.

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