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Civil Petition No. 206-R of 1984, decided on 4th December,1985.

(Against the Judgment and order of the Lahore High Court Lahore, Rawalpindi Bench, dated 24-6-1984 in R. S . A . No. 225 of 1981).

---Art. 185(3)--Punjab Pre-emption Act (I of 1913), Ss. 8(2) & 21--Suit for pre-emption --Claim of exemption of land from pre-emption, not accepted--High Court in second appeal got additional evidence recorded through trial Court and allowed appeal holding that land was situate within extended limits of Cantonment and hence not pre-emptible--Leave to appeal--Pleas raised inter alia that concurrent finding of fact should not have been disturbed and that requirement for getting additional evidence recorded were not satisfied and for that reason additional evidence brought on record should be ignored, held, untenable--Question involved throughout being one of fact and there being good ground for taking additional evidence for supplying a material omission for settling a controversy of fact, no material defect pointed out to examine further such question of fact--Leave to appeal refused.

Kh. M. Yusuf Saraf, Advocate Supreme Court assisted by Khan Imitaz Muhammad Khan, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 4th December, 1985.

--The petitioner, an unsuccessful pre emptor seeks leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, dated 24th of June, 1984 whereby the land sought to be pre-empted by him was held to be situate within the extended boundaries of Campbellpur Cantonment and hence not pre-emptible.

The respondents purchased on 26-5-1971 land measuring14 Kanals 13 Marlas in village Shinbagh, Tehsil and District Attock. The petitioner pre-empted the sale. His suit was in the first round dismissed by the trial Court on 5-5-1977 on the ground that the land was not pre-emptible. On appeal, the District Judge remanded it on 29-4-1979 for recording a finding of fact with regard to the claim of exemption of the land from the Law of Pre-emption after allowing the parties to lead evidence. After such trial, the suit was decreed on 30-10-1980. An appeal before the District Judge failed on 15-12-1981. In second appeal, the High Court on 22-12-1982 got additional evidence recorded through the trial Court and the property was got demarcated and thereafter allowed the appeal on 24-6-1984 holding that the land was situate within the extended limits of Campbellpur Cantonment and hence was not pre-emptible. The petitioner had also earlier come to this Court by a Civil Petition No. 22-R/83 seeking leave to appeal against the order of the High Court, dated 22-12-1982 calling for additional evidence with regard to the exact location of the property in dispute. It was, however, rejected and leave to appeal was not allowed then.

The learned counsel for the petitioner has contended before us that a concurrent finding of fact could not be set aside by the High Court in second appeal on the report of a Local Commissioner. There was, according to the learned counsel, no occasion for getting such additional evidence recorded as the requirements of Order XLI, rule 27, C.P.C. were not satisfied in that respect. With regard to the report of the Local Commissioner it was contended that it cannot be relied upon for more than one reason. The boundary pillars from which the measurements were taken by the Local Commissioner were found to be non-existent when the earlier Local Commissioner had gone to the spot for taking the measurements. Unless the exact location and the official position on record of these boundary pillars was established, any measurement started or taken from those boundary pillars could not become evidence of the exact boundary of the Cantonment. The learned counsel has also contended that there is no evidence: that the notification under subsection (3) of section 4 of the Cantonment Act was preceded by a notification under its subsection (1) calling for the objections. According to him, as the requirements of law were not satisfied in issuing the notification under subsection (3) of erection 4, the notification itself was not legal and binding. In any case, the learned counsel submitted that it was not implemented at the spot and no municipal facilities were at all made available to the residents of the area so included. It was just a paper notification according to him. Support for this fact was also sought to be drawn from a subsequent notification of the Provincial Government, dated 25-6-1981 whereby it . is said that "the same area which was' earlier sought to be included and was allegedly included in the Cantonment was also brought within the Municipal limits of Attock". Such could not be the result if the land had already been included in the Campbellpur Cantonment. Another objection taken up by the learned counsel was that as in the written statement no such objection had ever been taken that the land was not pre-emptible on account of its being within the limits of Cantonment the issue was outside the pleading and could not have been made the basis of a decision.

An examination of the petition for leave to appeal show that only two grounds were taken up therein. The first was that the concurrent finding of fact should not have been disturbed and the second was that the requirements for getting additional evidence recorded were not satisfied in the case and for that reason additional evidence brought on record should be ignored altogether. All the other grounds are outside it.

As regards the first the question involved throughout was one of fact. The evidence which ought to have been got recorded and was intended to be recorded was not recorded. The learned Judge of the High Court in the earlier order, dated 22-12-1982 had pointed out at length the necessity for this additional evidence. It had arisen because the report of the two Local Commissioners had been set aside as those were defective and the Court had thereafter taken up itself to visit the spot and to resolve this factual controversy. It had, however, omitted to do so. It was in this context that the appointment of a Local Commissioner was thought proper and in fact this order was considered to be justified by this Court when leave to appeal was refused to the petitioner earlier. There was, therefore, good ground for taking this additional evidence for supplying a material omission for settling a controversy of fact.

As regards the effect of the notification itself, the one placed on the record is expressed to be under section 4, subsection (3) of the Cantonment Act. It would be assumed unless contrary shown that the preliminaries necessary for notification under subsection (3) of section 4 of the Cantonment Act had been satisfied. With this notification coming into the field section 8 of the Punjab Pre-emption Act became applicable. It provides that "Except as may otherwise be declared in the case of any agricultural land in a notification by the Provincial Government no right of pre-emption shall exist within any Cantonment". As the notification under subsection (3) of section 4 of the Cantonment Act had come into the field earlier to the sale sought to be pre-empted these two provisions of the lawfully governed the case.

So far as the demarcation proceedings are concerned, an examination of the notification under the Cantonment Act itself shows that the way it was expressed by reference to degrees and. boundary pillars, a survey officer rather than a revenue officer was more suitable for demarcating the particular area in dispute. The unsatisfactory reports earlier submitted by the two Local Commissioners who were revenue officials also shows that they could not discharge the responsibility satisfactorily. No defect in the report as such has been brought out by questioning the Local Commissioner with regard to the manner in which the demarcation was conducted. The earlier absence of boundary pillars is of no avail particularly when the boundaries have been settled. The demarcation procedure requires first ensuring the correctness of the boundary pillars themselves and then taking measurements there from. It is not shown that in any way such a procedure was not adopted by the Local Commissioner.

A controversy on fact stands concluded by the report of the Local Commissioner which has been accepted by the learned Judge in the High Court. No material defect has been pointed out by the learned counsel for the petitioner to examine further this question of fact. Hence leave to appeal is refused.

M. I. Petition dismissed.

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