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Regular First Appeal No. 175 of 1982, decided on 15th May, 1984.

‑ S. 11‑Objection to pecuniary jurisdiction of trial Court neither raised before trial Court nor any issue claimed in respect thereof Such plea, held, could not be entertained at appellate stage -Objection as to jurisdiction, even if it was raised at proper time, appellate Court before giving effect to such objection had to be satisfied that valuation had prejudicially affected disposal of case on merits.

Nawab Din v. Mst. Hussain Bibi and others P L D 1956 (W. P.) Lah. 241 ref

‑‑ S. 35‑Khasra Girdawari‑Admissible in evidence‑No presump tion of correctness, held, could be attached to Khasra Girdawari, this being not part of record of rights‑West Pakistan Land Revenue Act (XVII of 1967), S. 39.

‑‑ Document having been produced after close of evidence by parties was not exhibited on record‑Such document, held, could not be treated as part of evidence.

‑‑ S. 15‑Agricultural land‑Assessment of land revenue, held, would not be a conclusive factor for holding that any piece of land was necessarily an agricultural land.

‑‑ S. 15‑Agricultural land‑Land on basis of which plaintiff claimed his superior right of' pre‑emption had not retained its agricultural character‑No reliable evidence was available on record to show that any part of said land was being used for agricultural purposes‑Land having changed its character as was built upon, plaintiff, held, could not claim to be an owner of estate and consequently had no right of pre‑emption over land in question.

Nawab Din v. Mst. Hussain Bibi and others P L D 1956 Lah. 214 ; Rahim Bakhsh v. Wahid Bakhsh P L D 1979 Lah. 544 ; Muhammad v. Mst. Pairi and others A I R 1936 Lah. 202 ; Allah Bakhsh v. Ilahi Bahhsh and 3 others P L D 1975 Lah. 359 and Muhammad Hussain v. Muhammad Din etc. P L J 1975 Lah. 234 ref.

Muhammad Akhtar Chishti v. Ijaz Ahmad etc. 1982 C L C 1700 and Muhammad Bashir v. Ghulam Akbar 1982 S C M R 1018 distinguished.

Raja Afrasiab Khan and Sh. Abdul Aziz for Appellants.

M. Arif for Respondent.

Dates of hearing : 17th, 21st, 22nd and 23rd April, 1984.

‑This Regular First Appeal is directed against the judgment and decree dated 17‑5‑1982 of the learned Civil Judge, IInd Class, Jauharabad whereby the suit of the plaintiff‑respondent for possession through pre‑emption was decreed on payment of Rs. 80,000. The appellants had purchased 22 Kanals 15 Marlas of land as detailed in the plaint vide registered sale‑deed dated 10‑6‑1979 against an ostensible price of Rs. 80,000. The plaintiff‑respondent claimed that real‑ price of the suit land was Rs. 19,000 and that Rs. 80,000 the ostensible price was a fictitious sum shown to have been paid so as to defeat the rights of prospective pre‑emptors. The superior right of pre‑emption was claimed on the ground of ownership in the estate and being a joint owner in the Khata. The appellants vendees resisted the suit by controverting the pleas of the plaintiff‑respondent and by raising preliminary objections as to deficiency in the court‑fee, limitation, maintainability and estoppel. It was also pleaded that they had spent Rs. 12,000 in improving the land and that they were entitled to the said sum in case of the success of the suit. The suit was instituted in the Court of Senior Civil Judge who forwarded the same for trial to the Court of Raja M. Shafique Javed, Civil Judge, IInd Class, Jauharabad. The learned trial Court framed as many as 10 issues arising out of the pleadings of the parties. It may be noted here that neither tie question of pecuniary jurisdiction of the trial Court was raised in the pleadings nor any issue in respect thereof was claimed or framed. The learned trial Court after recording evidence of the parties held that the suit was correctly valued for the purposes of court‑fee and jurisdiction and that the suit was not barred by limitation. Issue No. 3 as regards wrong description of the suit land was decided in the negative for want of evidence. Issue No. 4 relating to plea of estoppel was also decided against the appellants. Issue No. 6 was decided in favour of the appellants by recording the finding that sale price of Rs. 80,000 was fixed in good faith and was actually paid. Issue No. 7 thus, became redundant. Issues Nos. 8 . and 9 regarding ancillary expenses and improvements were found against the appellants/defendants. Under issue No. 5 the superior right of the pre‑emptor/plaintiff was upheld and the suit was accordingly decreed. The appellants thereafter filed an appeal in the Court of District Judge, Sargodha and ultimately District Judge, Khoshab vide order dated 23‑10‑1982 directed the return of memorandum of appeal to the appellants for presentation before this Court as the jurisdictional value of the suit was Rs. 59,546 and as such it exceeded the pecuniary jurisdiction of the District Judge. He held that the appeal would lie to the High Court. The memorandum of appeal so returned was then filed in this Court.

2. We have heard the learned counsel for the parties. Mr. M. Arif Advocate for the respondent assailed the order returning the memo. of appeal as according to him, value of the appeal did not exceed the pecuniary jurisdiction of the Court of District Judge. It was submitted that the land was under cultivation and as in the plaint valuation of the suit both for the purposes of court‑fee and jurisdiction was fixed at Rs. 19,000 and this value given in the plaint was held under issue No. 1 to have been correctly fixed, the appeal was competent before the learned District Judge. He maintained that instead of returning the appeal, the learned District Judge should have decided the appeal himself. We have gone through the order dated 23‑10‑1982 whereby the memorandum of appeal was ordered to be returned. In this order it was pointed out that at least on 14 Kanals and 15 Marlas of the suit land ad valorem court‑fee was payable as net profits had not arisen out of the said land and that the said piece of land was not also assessed to land revenue. The entry of KHARIJ AZ BASH (not assessed to land revenue recorded in Register Haq Daran Zamin (Exh. P. 4) was referred to in this respect. The valuation assessed of the land on the above basis came to Rs. 59,546 and to this valuation so worked no objection otherwise was raised before us. This appeal was as such rightly returned for presentation to this Court as it exceeded the pecuniary jurisdiction of the District Judge. The preliminary objection raised by the learned counsel, for the plaintiff/respondent is. therefore, repelled.

3. At this stage another objection raised by the learned counsel for he appellants may be attended to. He argued that the decree passed by he learned trial Court is illegal and nullity in law as the learned trial Judge ,as only a IInd Class Judge and as such he was not competent to try the suit, the value of which as determined by the learned District Judge was bar beyond his pecuniary jurisdiction. In support of this plea observation made by the learned District Judge in this respect in order dated 23‑10‑1982 was relied upon. We are not inclined to entertain this plea as admittedly objection to the pecuniary jurisdiction of the trial Court was neither raised before the trial Court nor any issue was claimed in respect thereof. In Nawab Din v. Mst. Hussain Bibi and others (P L D 1956 (W. P ) Lah. 214) the view taken was that the failure to raise an objection to the jurisdiction of the Court to decide the case at the very outset brings the case within the purview of section 1I of the Suits Valuation Act and that the Court ought not have given effect,' to objection raised before it at the time of hearing. Even if objection as to jurisdiction is raised at the proper time the appellate Court before giving effect to this objection must be satisfied that the valuation had prejudicially affected the disposal of the case on merits. No prejudicial effect on the disposal of the case was demonstrated before us.

4. Coming to the merits of the appeal the only issues agitated and argued before us is issue No. 5 relating to the superior right of pre‑emption of the plaintiff/respondent. The learned trial Court upheld the superior right of pre‑emption by observing that Khasra Girdawari Exhs. D. 4 and D. 5 do reflect the correct position existing on the spot and that in any case these entries have been effectively rebutted by copy of Khasra Girdawari for Kharif, 1981 (though not exhibited but forms part of the record) which shows that out of 1 Kanal, 15 Marlas were under cultivation and Jawar was cultivated thereon and the house was only on remaining five marlas. According to the learned trial Judge this established that the plaintiff‑respondent was joint owner in the Khata and owner in the estate and the suit land being out of the limits of Municipal Committee the same could be pre‑empted. Learned counsel for the respondent‑plaintiff supported these observations and findings and argued that the suit of the plaintiff was rightly decreed. He sought support from Muhammad Akhtar Chishti v. Ijaz Ahmad etc. (1982 C L C 1700).

5. In reply the learned counsel for the appellants‑vendees argued that the sale of the land in Khasra number 3765/3065 on the basis of which right of pre‑emption was claimed was void being violative of the provisions of Martial Law Regulation Nos. 64 and 115 as it is being claimed that the suit land so purchased was agricultural land and that on the basis of such a void sale, superior right of pre‑emption cannot be claimed. In the alterna tive it was argued that if the land purchased was a Sakni land (as it was mentioned in the mutation sanctioning the sale that the land was being purchased for residential purposes), then the plaintiff‑respondent cannot claim to be one of proprietary body of the village or owner in the estate and thus there exists no basis to claim the right of pre‑emption. He further added that finding of the learned trial Court that the land on the basis of which superior right of pre‑emption was claimed was not in fact agricultural land is contrary to record as a house had already been constructed on a part of the land and the remaining uncovered land was a courtyard of the house or at best a Sakni/vacant land and as the entry of J3war on 15 marlas appearing against Kharif 1981 crop in the Khasra Girdawari could neither be read into evidence nor relied upon as the said Khasra Girdawari was not part of the evidence on the record, the same having not been proved or exhibited.

6. We have considered the respective arguments of the parties and have also gone through the evidence on toe record. The learned trial Court relying on entry of khasra Girdawari for Kharif 81 held that the entries contained in Khasra Girdawari Exhs. D. 4 and D. 5 stood rebutted and that the entries of Knasra Girdawari Exhs. D. 4 and D. 5 do not reflect correct position existing op the spot. No doubt Khasra Girdawaris are admissible in evidence under section 35 of the Evidence Act but no presumption of correctness attaches to the Khasra Girdawaris as these are not part of the record of rights. It will further be seen that the learned trial Court relied upon entries of Khasra Girdawari which was not exhibited on record. This Khasra Girdawari could not have been relied upon and read into evidence. It is pertinent to note in this respect that the plaintiff‑ had closed even his evidence in rebuttal on 12‑9‑1981 (page 111 of the paper book refers). Copy of this Khasra Girdawari relied upon by the learned trial Court was prepared on 13‑12‑1981 as is apparent from the copy of the Khasra Girdawari appear ing on page 93 of the paper book. This Knasra Girdawari having been produc ed after the close of evidence by‑the parties was not exhibited on recorded and as such the same could not have been treated as part of evidence. The learned trial Judge as asuch has erred in law in relying upon the said entry and in holding that the entries contained therein sufficiently rebut the entries contained in Khasra Girdawari Exhs. D. 4 and D. 5. The learned trial Court also failed to examine the oral evidence on record and to deter mine whether on the basis of overall evidence available on record the land on the basis of which the right of pre‑emption was claimed had retained its agricultural character or had undergone a change and was .to be treated as Sakni' land thereby excluding the plaintiff from the proprietary body of the village. We have examined the evidence on record from ‑ this point of view. The land measuring 1 &anal out of Khasra No. 3765/3065 was purchased vide decree of Civil Court and on the basis of the decree of the civil Court Mutation No. 5193 dated 24‑12‑1975 Exh. P. 5 was sanction ed. In the mutation Exh. P. 5/D. 3 it was recorded that the land was being purchased for residential purposes. In Khasra Girdawari D. 4 against crops of Kharif 1979 and Rabi 1980 the entries recorded read (vacant). In Exh. D. 5 entries read as under :‑Kharif 1979 vacant, Rabi 1980 wheat I Kanal Kharif 1980 Ghair Mumkan Makan Safaida 1 Kanal.

Sardar Bakhsh Patwari (P. W. 1) in his cross‑examination deposed that the land which the plaintiff had purchased for residential‑purposes was situated at a distance of 1 Killa towards East from Technical High School, Jauharabad and that Pacca road was at a distance of two furlongs there from. He further deposed that the plaintiff had also laid foundation on this one Kanal and had also installed a water‑pump and that he had also bounded the entire area with bricks. He admitted that till date, Le. 8‑5‑1981 the date do which he was examined the Sakni status of the land was continuing. He also conceded that the people after purchasing the land for residential purposes have constructed their house, in the vicinity of the said land. He also admitted that on the adjourning land, Hayat Colony, had already been constructed. The plaintiff in his own statement recorded on 12‑9‑1981 claimed that his land measuring 1 Kanal is agricultural in nature and that the land around his land is also agricultural, though the people have constructed their "Deras" at some distances. He further stated that on half of the land he had cultivated Jawar at that time and the other half had been built upon and is residential. In cross‑examination he deposed that towards the West of his land there. is Government Technical High School, Jauharabad, on the East is the bungalow of Khuda Bakhsh, towards North is watercourse and abandoned brick kiln and further thereto houses of the people exist. Thereafter, Saleh Muhammad plaintiff tried to riggle out of his statement by voluntarily, adding that towards the East of the suit land there is no bungalow of Khuda Bakhsh, but that was a vacant site owned by Khuda Bakhsh and that the said area was agricultural. It is also in his cross examination that the suit land is situated on the main road at a distance of one kilometre from the octroi post. The appellants‑defendants produced Abdul Ghafoor (t). W. 1) and Saved Akhtar one of the appellants defendants appeared as D. W. 2. Saved Akhtar D. W. 2 deposed that the laud on the basis of which right of pre‑emption was being claimed was not under cultivation and that the respondent‑plaintiff had laid foundation of three rooms as well as of four‑walls and that water‑pump had also been installed therein. It is also in his evidence that there is Abadi and residential houses all around, the said plot and that there is also a bungalow of the person from whom the plaintiff had purchased the said site and that the plaintiff was not owner of any agricultural land. This statement was recorded on 2‑9‑1981. In the cross‑examination he admitted that he had not seen the suit land for the last 6 months and that after about 5/6 months of the institution of the suit he had seen the 1 Kanal plot of the plaintiff who had therein laid foundation of the rooms etc. after leaving about 5 Marlas for the courtyard. He conceded that he was not in a position to say that at the time of recording of his statement the plaintiff had sown or not any crop on these 5 Marlas which were left for the purposes of courtyard. He further stated that it is incorrect that the plaintiff had then sown crop on those 5 Marlas which was demarcated for courtyard. It may be stated here that a plaintiff in order to succeed has to retain his qualifications till the date of the decree. The evidence on record as summarised above sufficiently establishes that the plot purchased by the appellant did not retain its agricultural character as admittedly half of it has been built upon and is residential. As regards the other half the assertion that it was under cultivation does not stand established. Khasra Girdawari Exh. D. 5 contains entry of Ghair Mumkan Sofaida for Kharif, 1980. The claim that in Kharif 1981 Jawar was sown on 15 Marlas made in the solitary statement of the plaintiff himself gets no support from the evidence on record. The entry of the Khasra Girdawari not exhibited on record cannot be relied upon and even otherwise such an entry got inserted during the pendency of the suit cannot be given any credit. Not only the plot of land on the basis of which the right of pre‑emption was claimed did not retain its agricul tural character even the land around the said plot has not retained its agricultural character as residential houses have been built all around. In Rahim Bakhsh v. Wahid Bakhsh (P L D 1979 Lah. 544), the learned Judge of t its Court relied on Shah Muhammad v. Mst. Pairi and others (A I R 1936 Lah. 202), wherein it was observed that the term owner of the estate as used in section 15 of the Punjab Pre emption Act imports ownership of agricultural land only and as soon as an area of land which was admittedly agricultural before is converted into a building site, it at once ceases to be a part of the estate and its owner, therefore, is deprived of all those privileges which he could other wise enjoy under the law. In Allah Bakhsh v. Ilahi Bakhsh and 3 others (P L D 1975 Lah. 359) after appraisal of the case‑law it was noted that Khasra Girdawari also described a portion of the land as Ghair Mumkin Abadi and the perusal of the sale‑deeds and area mentioned therein obviously go to show that the alienations were for small pieces of land for construction purposes. In Muhammad Hussain v. Muhammad Din etc. (P L D 975 Lah, 234), it was not disputed that the land on the basis of which the appellant wanted to pre‑empt was com pletely built up and this had permanently changed the nature of agricultural land. It was held that that land was no more a part of an estate and that the said appellant‑pre‑emptor who was some times owner of the estate but as the record shows was now built up, had, therefore, walked out of that estate and was no more an owner of any part of that estate and as such had no right of pre‑emption. The plea that the land which is assessed to land revenue has to be treated as agricultural land irrespective of the fact that part of it has been built upon is without merit. In the case of Muhammad Hussain (supra) it was observed as follows :‑

"A piece of land may be paying land revenue but it would be out of the estate if its character has changed by putting it to use permanently other than for agricultural purposes Whenever a house or other such super‑structure is erected on land the intention of the owner shall be to convert it to all other purposes except agricultural and the land does not remain a part of the estate and its owner voluntarily walks out of the estate. From the definition of estate as given in Punjab Land Revenge Act it is apparent that an estate which would include land both the agricultural and non agricultural as long as it does not form part of a village or urban immovable property which has been assessed to land revenue would fall within the definition of estate. But if a portion of the estate is by constant and permanent user fallen into the category of village or urban immovable property although assessed to land revenue, would no more form part of the estate."

In a case like the one in hand the assessment of land revenue would not a conclusive factor for holding that any piece of land, is, necessarily an agricultural land. It is no doubt, one of the relevant consideration. For determining the character of the land. The case of Muhammad Akhtar Chishti (supra) is distinguishable as in the said case it was found as a fact that a garden in 15 Marlas existed. It was on the basis of this finding coupled with the finding that the land was assessed to land revenue that the finding was returned that the land retained its agricultural character. This precedent is, therefore, distinguishable. Even in the case of Muhammad Bashir v. Ghulam Akbar (1982 S C M R 1018), the finding recorded was that out of the total area, 1 Kanal and 8 Marlas was still used for agricultural purposes while on 10 Marlas the respondent had constructed a house and the area left out was still used for agricultural purposes. It was further observed that even the revenue record showed that seasonal crops were sown on the part of the land which had not been built upon and there was no evidence before the Court that the land of the respondent was contiguous or not in the limits of village Abadi". The position obtain ing in the instant case is to the contrary as found and held by us above. We have held above that the land on the basis of which the respondent plaintiff claimed his superior right of pre‑emption did not retain its agricultural character and that there is no reliable evidence on record to show that any part of the said‑ land was being used for agricultural purposes. The land in question having changed its character as was built upon the plaintiff‑respondent cannot claim to be an owner of estate and consequently has no right of pre‑emption over the land in dispute. The learned trial Court thus erred in decreeing the suit.

7. The other argument of the learned counsel regarding the validity of the sale on the plea that the sale was violative of the provisions of the Land Reforms Regulations, 1972, Martial Law Regulation No. 115 may now be attended to. This argument may not detain us any further as in the case of Muhammad Bashir (supra) this very plea was repelled by observing as under :‑

"The argument of the learned counsel regarding the validity of the sale is also without any legal force as the law of pre‑emption is the law of substitution and no other Court except the authority concerned under M. L. R. 115 can go into the question of the validity of the sale."

8. The net result of the above discussion is that the judgment and decree dated 17‑5‑1982 of the learned trial Court is set aside and the suit of the plaintiff is dismissed with costs throughout.

M.B.A. Order accordingly.

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