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-- O. XXVI, r. 10-Report of Local Commissioner replete with inferences-Discarding of ---Local Commissioner appointed in pre emption suit with consent of parties to report whether land in dispute urban immovable property, submitting report and appearing, as witness- Vendees cross-examining Local Commissioner-Nothing in his statement militating against observations in report-Local, Commissioner giving accurate description of land - Held, report substantially within scope of reference with parties' consent, cannot be discarded merely because (beside being description of land) replete with certain inferences.

--- S. 3 (1) & (2) - 'Baniar Qadeem' and 'Banjar Jadeed' land Character of-Land described in revenue record as Banjar Qadeem' and 'Banjar Jadeed' - Both descriptions known categories of agricultural land-Held, rural area within Municipality important factor for determining its character but not conclusive criterion for such determination and similarly area outside Municipal limits bearing incidents of urban life may be denuded of status of agricul tural land or village immovable property.

Allah Bakhsh v. Ilahi Bakhsh P L D 1975 Lab. 357 ; Sheikh Abdul Rehman v. Khan Sahib Haji Rashid Ahmad A I R 1937 Lab. 182 ; Lai and others v. Muhammad Sharif P L D 1961 (W. P.) Lab. 47 and Bahadur Khan v. Kundan Lai A I R 1936 Lab. 267 distinguished.

Ch. h1uhammad Hassan for Appellants.

Malik Muhammad Nawaz for Respondent No. 1.

Memo for the Remaining Respondents.

Date of hearing : 11th October, 1982.

Ch. Muhammad Latif Khan respondent brought a suit against the vendees-appellants to pre-empt the sale of land measuring 24 Kanals situate in the revenue state of village Noon, Tehsil Ferozewala, District Sheikhupura. Respondents Nos. 2 to 26 as subsequent vendees, were also implea ded as defendants. The suit was resisted by the vendees on the plea, that the land in dispute was urban immovable property and not agricul tural land amenable to preemptory rights of the respondent. The controversy, between the parties, in this behalf was encompassed by issue No. 2 to the effect :-

"Whether the suit land is urban immovable property and not pre. emptible

Both the Courts below answered this issue in favour of the pre-emptor. Consequently, the suit was decreed and the vendees' first appeal failed. They have now come to this Court in second appeal.

2. The material on consideration whereof the trial Court held that at the time of the sale, the land was not urban immovable property, con sisted of the copies of the revenue record, the report of the Local Com missioner and the oral testimony of the witnesses produced by the parties. Its decision was, however, largely influenced by the report of the Local Commissioner.

3. Agreeing with the view taken by the learned trial Court, under the impugned judgment, the learned District Judge maintained that the land is located at a distance of two miles from the limits of Muridke town ; it is surrounded by agricultural land and even a part thereof is under cultivation. In his opinion, the construction of a few houses on the land and emergence of some mills in its vicinity on the G. T. Road, is not enough to change its character from rural agricultural land, to urban immovable property.

4. I have heard the learned counsel for the appellants and the heirs of respondent No. 1 and with their assistance also examined the record. Notices by registered post were issued to respondents Nos. 2 to 26 for to date. No one has entered appearance on their behalf. They have been, therefore, proceeded against ex parte.

5. On behalf of the appellants, the stand taken by them before the learned Courts below was reiterated, and it was argued that the land formed part of an industrial area ; it lost its original character as agricul tural land and was occupied by people following heterogeneous pursuits who raised houses thereat. It was vehemently urged that inclusion of the land within the municipal area, was not sinequa non for conversion of its character from rural to urban immovable property. The appellants' learned counsel went on to argue, that the land was visited upon, by all incidents of urban life and thus there was no sound basis to continue to characterize it as agricultural land. In this connection, he heavily relied on the testi mony of Umar Draz Patwari (D. W. 1) who stated that the land in dispute was located at a distance of 1 square from the G. T. Road close to abadi' known as Sharif Pura and Rehan Pura, to which electric supply was available there were 5 or 6 milk, curd and Karyana Shops and a private Primary School, in Rehan Pura. It is also in his statement that a Cinema exists on the G. T. Road. The learned counsel further criticised the whole some reliance of the Courts below, on the report of the Local Commis sioner and contended that instead of submitting a report, the latter had given a decision. He then referred to the entries in the Khasra Girdawri Exh. D. 4 for the period from Kharif 1964 to Kharif 1968 which described the land as Banjar Qadeem. As regards the case law on the subject he placed reliance on Allah Bakhsh v. Ilahi Bakhsh (A I R 1937 Lab. 182), Sheikh Abdul Rehman v. Khan Sahib Haji Rashid Ahmad (A I R 1937 Lab. 182), Lai and others v. Muhammad Sharij (P L D 1961 (W. P.) lah. 47) and Bahadur Khan v. Kundan Lai (A I R 1936 Lab. 267).

6. It is discernible from the trial Court's order dated 20th December, 1972 that Mr. Mushtaq Ahmad Khan a local lawyer was appointed a Local Commissioner with the consent of both the parties. He was required to report as to whether or not the land in dispute was urban immovable A property. The latter inspected the spot and submitted his report dated 30th January, 1977 to the learned trial Court, according to which :-

....The site in dispute is not supported by metalled roads or buildings constructed by the Government or occupied by Govern ment employees nor the area is electrified. It is not a suburb of Muridke itself as the same is at a distance of over two miles. The fact that some mills are functioning along the Grand Trunk Road which is at a distance of over 1/2 mile lends no support to the contention of the defendants that site is urban immovable property. The site is a chaotic picture of slum where there is absence of com plete community facilities of services. The urban limits of Muridke Town Committee finish nearby two miles away from the disputed land. There are not even marginal facilities available to this abadi which are ordinarily available to a town

The Local Commissioner also appeared in the witness box to prove his report and was subjected to cross-examination by the appellants. But there is nothing in his statement militating against the observations recorded in the report. May be, the appellants' learned counsel is not wrong in asserting, that the report somewhat abounds with the elements of a decision but the document when ready as a whole, amply demonstrates, that what the Local Commissioner really intended, was to give an accurate description of the land. I do not think, as long as the report substantially remains within the scope of the reference made with the consent of the parties, it can be discarded merely because beside the description of the: land, it is replete with certain inferences.

7. Much against the assertion made by the appellants' learned counsel the revenue record- is not of much help to them. The land in dispute bears Khasra Nos. 1657, 1658 and 1675 each measuring 8 Kanals. It was sold by means of a sale deed, on the basis whereof mutation No. 413 was attested on 15th November, 1967. As per entries in the mutation, 19 Kanals is 'Banjar Qadeem'. In the copies of the Register Haqdaran for the years 1943-44 and 1951-52 the entire land has been described as Banjar Qadeem'. However, in the Register Haqdaran for the year 1963-64, an area measuring 5 Kanals forming part of Khasra No. 1675, is mentioned as "Banjar Qadeem Thoor" and the rest of the land shown as "Aabi", under cultivation of one eunoo on payment of half "batai". The position, in the interregnum between Rabi 1965 to Rabi 1967 as borne out from the Khasra Girdawari Exh. D. 4 appears to be that the land had been lying vacant and was characterized as Banjar Jadeed, but in the subsequent two Khasra Girdawaris its character was changed from iBanjar Jadeed' to Ban jar Qadeem'. The fact that for a few crops, the land was not brought under cultivation and consequently, it came to be recorded in the Girdawari as Banjar Jadeed and Banjar Qadeem, would not make any difference. Both these descriptions are the known categories of agricultural land. It is correct that inclusion of a rural area within the limits of municipality is an important factor for determination of its character but by no means it ca be considered as a conclusive criterion for such determination. Similarly, area situate outside the municipal limits if found bearing the incidents of urban life may be denuded of its status as an agricultural land or village improvable property. It would. thus depend on the facts and the attending,1 circumstances of each case as to whether or not area previously rural agricultural land, has become urban area.

8. I may now proceed with the examination of the case law cited by the learned counsel and see how far it is of any help to the appellants. Taking up, Ilahi Bakhsh's case first, it is to be seen that the land, therein, was situate within the limits of Multan City. It measured only 10 Marlas and its sale, comprising two transactions, was made by two separate sale deeds. What largely weighed with the High Court, in holding that the land had lost it rural character and became urban immovable property was, that the alienations were of small pieces and in the Khasra Girdawari, a portion of the land was described as "ghar mumkin abadi". In the case of the ruling reported as A I R 1937 Lah. 182, a site located in the urban area of Delhi was subjected to pre-emptory rights. It was proved by evidence that the property in dispute was part of a locality of Delhi Municipality, known as Sabzi Mandi and was situate in its vicinity. Furthermore, quite contiguous to it, the land earlier utilized for gardens was converted into building sites and in the nearby area several factories had been set up, and that the village of which the land earlier formed part of, ceased to exist. Thus, the land had completely shed off its characters as village immovable property. This ruling lays down, that the question as to whether or not a rural area has lost its pre-existing character, has got to be determined on the merits of each case. A Division Bench of this Court, followed this decision, in "Lai and others v. Muhammad Sharif", wherein a site in village Mehmeda Gharbi, within the municipal limits of Gujrat, was considered as an urban immovable property, as it was proved by evidence that the site in question was surrounded by roads and in the area several buildings, including an office of Executive Engineer, had been constructed which were occupied by Government employees. The area was electrified and only three furlongs away from it, the streets were also supplied with the electricity. Similarly, in Bahadur Khan v. Kundan Lai, the Court dealt with a piece of land in Basi Kalan of Hoshiarpur District and it was found that :-

"Bast Kalan is occupied by a heterogeneous population with a pre ponderance of non-agriculturists that the culturable area is only about 639 Kanals, that there are two regular bazars with about 220 shops that there is n hospital, schools for .boys and girls, a post office and so forth .

The facts in Bahadur Khan's case giving rise to these observations are, however, different from that of the instant case.

9. On analysis of the facts of this case, in the light of the precedents aforesaid, it transpires that the area in dispute is a fairly big chunk of land measuring 24 Kanals and its sale is evidenced by a single sale-deed. Accord ing to the revenue record, not long before the sale, the bulk of the land was "Aabi" and under cultivation. It also does not constitute a suburb of any own. Muridke is the nearest town, which lies at a distance of two miles from this land. As per report of the Local Commissioner, the area does not enjoy even. the marginal facilities of the city life. It thus follows that the land bears the character of agricultural land. If after the sale some houses have been built upon it, that would not be of much significance. The view taken by the learned Courts below is supported by the material on the record and is in conformity with law.

There is no merit in this appeal. Accordingly, it is dismissed but the parties are left to bear their own costs.

K.M.A. Appeal dismissed.

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