B.C. Misra, J.
(1) This second appeal under section 100 of the Code of Civil Procedure prior to the amendment, .has been filed by the legal representatives of the first defendant, who is the vendee. The appeal is directed against the appellate decree of Mr. H. K. S. Malik, then Senior Sub-Judge, dated 6th October, 1972, by which he has allowed the appeal and reversing the decree of the court of first instance, dated 12th April, 1971, finally decreed the suit of the plaintiff respondent for recovery of possession of the land in dispute by pre-emption.
(2) In this appeal, Chandi Ram, respondent No. 2 was the vendor of the land, who was defendant No. 2 in the suit and is not represented. The contesting respondent is Smt. Shiv Dei, plaintiff in the suit, respondent No. 1 herein and she is the wife of respondent No. 2. The contesting defendant, of course, is the appellant, vendee. The land in dispute measures about 8 bids was or 414 sq. yds., in plot No. 63, Khasra No. 140, village Mubarakpur Kotla. This village is now known as New Delhi South Extension Part 1. On 12th April, 1956, respondent No. 2 sold the aforesaid plot of land to the appellant's predecessor, Topan Dass, defendant No. 1 under sale deed (Ex. P1), for a sum of Rs. 5000.00 . The sale deed dt. 12-4-1956 had been presented for registration, but was registered on 21st May, 1957. On 20th May, 1958, the plaintiff instituted the suit giving rise to this appeal, for pre-empting the same under clause (a) of section 15 of the Punjab Pre-emption Act, 1 of 1913, as it stood amended prior to 1960 (hereinafter referred to as the Act), in her capacity as a person entitled to succeed to the land on the assumption of the death of the bhumidar. The suit was contested by the contesting defendant, and on the pleadings of the parties, the following issues were framed :
' 1. Whether the plaint is correctly valued for purposes of court fee and jurisdiction ?
2.Whether the suit is within time ?
3.Whether the plaintiff has a right to pre-empt ?
4.Whether the sale consideration was fixed in good faith or actually paid ?
5.If issue No. 4 is not proved, then what is the market value ?
6.Whether the suit is collusive ?
The court of first instance decided issues 1, 4 and 5 in favor of the defendants and issue No. 6 against them. Issues 2 and 3 were decided against the plaintiff, with the result the suit was dismissed with costs. Feeling aggrieved, the plaintiff filed a first appeal and the lower appellate court has reversed the finding on issues 2 and 3 and decreed the suit. The same has been assailed by the contesting defendant in this second appeal.
(3) Mr. Bhatia appearing to support the second appeal has contended that the lower appellate court has erred in reversing the finding of the court of first instance and that the land in dispute was not agricultural and as such the plaintiff respondent had no right to pre-empt the same, and lastly the suit was barred by time and the lower appellate court has fallen into an error in holding it within time.
(4) I have heard the counsel for the parties at length and have perused the record. The court of first instance in paragraph observed as follows :
'THEevidence discussed above will reveal that long before the sale in dispute, the layout plan of this area had already been sanctioned, there existed a Municipal Committee which had imposed taxes on property, development work had started, houses started coming up and eventually a posh colony sprang up with modern facilities. To me, it is obvious that this area had lost the characteristics of a village and had turned into a town before the date of the present sale. The cultivation had also stopped in the plots included in this scheme and those adjoining them. Thus my conclusion is that the land in dispute was not agricultural land at the time of sale nor could it be said to be village immoveable property for the reasons stated above. thereforee, although the plaintiff may have a right of pre-emption beiag the wife of the vendor, yet it cannot be exercised in respect of the property in dispute for the reasons stated above.'
The lower appellate court in paragraphs 4 and 5 observed thus:
'4.It must be stated at the very outset that the decision of this case presents exceptional difficulty. The reason is that the entire area where the land is situated was undergoing a tremendous change in character near about the date of sale. A few years prior to the date of sale the land in suit along with the vast area of land surrounding it was definitely agricultural. Similarly a couple of years after the date of sale the land in that area could be unmistakably considered to be non-agricultural. The question is where to draw the line. What is the exact date when the land in suit ceased to be agricultural ?
5.The difficulty of deciding such an intricate question is apparent to anybody. It is more so to me because I find that the evidence produced is not so satisfactory as it should and could have been. Certain matters could have been Clarified by recalling some of the witnesses but that is not possible because litigation is going on since 1958 and the parties Want not merely an early decision but aft immediate decision.'
(5) In my opinion, if the observations of the lower appellate court noticed above are correct, then its obvious duty was to affirm the finding of the trial court. As a matter of law, the appellate court is not entitled to reverse the findings of fact merely because it is possible to take a different view of the evidence produced on the record. The court of appeal must find that they are overwhelming reasons to show why the findings of the first court are erroneous and not sustainable and then only it can interfere with the same and reverse them. It appears to me that the lower appellate court has fallen into an error in arriving at its finding.
(6) In the Punjab Pre-emption Act, section 15(a) reads as follows :
'15.Subject to the provisions of section 14, the right of preemption in respect of agricultural land and village immovable property shall vest- (a) where the sale is by a sole owner or occupancy tenant or. in the case of land or property jointly owned or held, is by all the co-sharers jointly, the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold.'
This has been amended by Act 10 of 1960, with the result that the wife does not have a right of pre-emption any longer and the same is confined to the persons mentioned in the amending Act. However, what governs the instant case is the law as it stood prior to the said amendment. Under the law, as it then stood, the words 'agricultural land' are defined by clause (1) of section 3 as meaning land as defined in the Punjab Alienation of Land Act, 1900 (as amended by Act I of 1907), but shall not include the rights of mortgage, whether usufructuary or not, in such land.' The Punjab Alienation of Land Act has since been repealed, but the repeal does not affect the validity or the availability of the said definition for purposes of pre-emption. We shall, thereforee, refer to the definition of agricultural land occurring in the Punjab Alienation of Land Act. Section 2 of the Punjab Alienation of Land Act, 1909, reads as follows :
'THEexpression land' means land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture and includes-
(A)the sites of buildings or other structures on such land;
(B)a share in the profits of an estate or holding ;
(C)any dues or any fixed percentage of the land revenue payable by an infericr landowner to a superior landowner ;
(D)a right to receive rent ;
(E)any right to water enjoyed by the owner or occupier of land as such ; and
(F)any right of occupancy.
(G)all trees standing on such land. '
(7) The question for consideration is whether the land in dispute is agricultural land within the meaning of the aforesaid definition. Before we proceed to discuss the same, it may be useful to point out that clause (3) of section 3 of the Act by contradistinction describes the 'urban immovable property' as immovable property within the limits of a town, other than the agricultural land and that for this purpose, it is directed that a specified place shall be deemed to be a town (a) if so declared by the Local Government by notification in the official Gazette, or (b) if so found by the court. The notification No. 677 issued by the Lt. Governor on 10th November, 1908, has declared the Delhi City and Cantonment as well as Najafgarh and Mehrauli to be towns. No such notification in respect of New Delhi or South Delhi has been brought to my notice. We shall, thereforee, examine whether the land in dispute is agricultural land. How to determine it ?
(8) In Sheikh Abdul Rahman v. Khan Sahib Haji Rashid Ahmed Air 1937 Lah 182 , the Division Bench of the High Court after considering a number of authorities laid down the following tests : (1) that the mere fact that a rural area is included within the limits of a town is not conclusive as to the urban character of the area in question; (2) that the rural area may lose its pre-existing character and be then absorbed in the urban area ; (3) that the inclusion of a rural area within the Municipal limits of a town is an important factor to be considered in determining the character of the area in question; (4) that each case is to be judged on its own merits. Applying the aforesaid principles in that case, the Division Bench found that the revenue estate of Sadhaura Kalan (which now falls in Subzi Mandi) had definitely been included in the part of the town of Delhi, which is known as Sabzi Mandi and the land in suit is in the vicinity of that Mandi and that for all intents and purposes it had been- absorbed into the urban area of Delhi and it had ceased to be agricultural land and could not be called a village immovable property. In Diwan Chand v. Nizam Din, Air 1924 Lah 662, the village was held to connote ordinarily an area occupied by a body of men mainly dependent upon agriculture or occupations subservient thereto. This authority also contains an observation that the reported cases contain many instances of rural areas in the vicinity of a town which had ceased to be rural and grown into a suburb of the town and such areas have to be governed by rules applying to urban properties.
(9) In Gopi Mal v. Muhammed Yasin, Air 1924 Lah 657 it was held that it was not a necessary implication that land was not agricultural land, merely because at the time of sale it bore no crop ; agricultural land often lay fallow in the ordinary course of agriculture and in this country often remained unsown by reason of paucity of excess of moisture, but each must be decided on its own facts. It was, however, held that where the land had not been used for agricultural purposes for six years preceding the sale and was subsequently proposed for sale as building site, it was not agricultural land. In Shah Mohammad v. Mt. Pairi, Air 1936 Lah 202, it was held that as soon as an area of land, which was admittedly agricultural before, was converted into a building site, it at once ceased to be a part of the estate and its owner was deprived of all those privileges which he could otherwise enjoy under the law. In Uttam Chand v. Khodaya,AIR 1929 Lah164, it was held that the mere fact that a land paid land revenue did not make it agricultural land as land revenue would continue to be assessed on land even though it was subsequently included in a village or town. To the same effect is Phaggu Shah v. Khair Din, Air 1938 Lah 353. In Balwant Rai v. Dittu Ram, 1959 Plr 716(7), the court observed that the nature of land, the subject matter of a pre-emption suit, was to be seen as on the date of the sale and where the property had been entirely diverted from its original agricultural use to use of a bhatta, it ceased to be agricultural land and could not be pre-empted.
(10) In Lala Khazanchi Shah v. Haji Niaz Ali, Air 1940 Lah 438, the Division Bench observed that the question whether land was agricultural was not to be determined on description in the revenue papers though these were, no doubt, valuable as throwing light on how much the land had actually been used for a certain number of years, and all the facts and circumstances must be taken together in determining whether land was or was not agricultural within the meaning of the definition, and the mere fact that a judgment-debtor, as a last and desperate resort, proceeded to dultivate a few patches of land which had never been used for agriculture would not make the land agricultural land; nor would the fact that the land had laid fallow for one or two or more years necessarily make the land ceased to be agricultural land. Further, the fact that for a long time the land had not been cultivated and the fact that the land was situate near the abadi within the Municipal limits and the fact that adjacent land was neither a part of the abadi or was being used for building sites would tend to show that the land had ceased to be. agricultural land.
(11) Mr. Chawla, learned counsel for the respondent has cited Jiwa v. Buta and others, 26 Punjab record 1912 page 92(9), for the proposition that the land which at the time of the sale was occupied or let for agricultural purposes or for purposes subservient to agricultural and was not occupied as site of any building in a town or village, was subject to pre-emption, no matter whether it was situate in a town or village and that fact that the land had since the date of the sale been built upon by the vendee, could not alter its character so as to affect the plaintiff's right of pre-emption. So far as this authority is concerned, unfortunately, it was delivered on 9th December, 1911. Under the Punjab Pre-emption Act, 11 of 1905- The law which I have applied is the Punjab Pre-emption Act of 1913, as amended from time to time except the last amendment of 1960 which. does not apply. However, I accept the principle of law that the nature of the land whether it is subject to a right of pre-emption or not is to be determined as on the date of the sale, since this proposition is laid down not only by this authority, but is a very well established rule of law contained in all the relevant authorities. The lower appellate court has, however, erred in ignoring the material evidence on the subject and I shall consider the same.
(12) With regard to the nature of the land on the date of the sale, the best evidence would have been the statement of Chandi Ram, the proprietor, who sold the land. Had he appeared in the witness box and submitted himself to cross-examination and made a convincing statement consistent of the documentary evidence, it would have carried a great weight, but he has not appeared. He was the husband of the plaintiff. He had appeared at one stage of the suit on behalf of the plaintiff when it was decided ex parte, but when the ex parte order was set aside and the suit was contested he never appeared. The lower appellate court, thereforee, ought to have drawn an adverse inference against his non-appearance, which it has failed to do. Again Chandi Ram, vendor, who was the proprietor of the Khasra in dispute, sold the land adjacent to the land in dispute on 24th November, 1955 by Ex. Public Witness 12/2 to Capt. Gurbax Singh at a price of Rs. 9 per sq. yard. The sale was in respect of plot No. 64, which adjoins the land in dispute. This sale had taken place about five months earlier than the sale in dispute. The deed of conveyance as well as the act of sale establishes that Chandi Ram proprietor, had abandoned the land from its use as agricultural land and he had commenced the sales as plots of land for construction of houses. The price of sale at Rs. 9 per sq. yd. would demolish the intention to use the land as agricultural. Again eight months earlier he had sold a piece of land in plot No. 94 (vide Ex. DW5/1) to one Mansa Devi at the rate of Rs. 6 per sq. yd. This piece of land fell in the neighbouring Khasra No. 142 and not in the Khasra No. 140 in dispute. But this indicates the act of the vendor to abandon the land for agricultural purposes, and use it for urban housing.
(13) The revenue records tell the same tale. Ex. D4, the relevant Khasra Girdawari, shows that 5 bighas and 17 bids was of land in Khasra No. 140 was subject to cultivation for the year 1949-50, but from the Rabi 1954, that is to say March, 1954 the land was shown, as 'Khali', which means uncultivated. For Kharif 1955, the land is shown as Ghair Mumkin plot. This shows that the land thereafter was not lying fallow, which had been diverted from the use of agricultural land to an uncultivable plot of land, that is to say, housing plots. This entry continued up to Rabi, 1957, that is to say up to March, 1957. The conclusion is that on the date of sale, viz. 12th April, 1956, the revenue record shows the piece of land as Ghair Mumkin plot, that is to say uncultivable plots of land. In other words meant for housing plots. Ex. D3, and D2 point to the same conclusion. In fact the land was in cultivation up to 1953 or at the most some date in 1954 and thereafter it was abandoned from the use for agriculture. It was lying fallow for some time and then was recorded as uncultivable. This evidence unmistakably points to the fact that the land had ceased to be used, in fact or even intended to be used for agricultural purposes and the same had changed its character into an urban land. Mr. Chawla relying upon some instruction of the Financial Commissioner, comments that the entry of uncultivable plot is erroneous and in the circumstances of the case, if the land had remained fallow for two years, it ought to have been recorded as Bandar Jadeed and after another period of two years must have been recorded as Banjar Qadim. Indeed, this would have been so had the land retained its agricultural character. But, if it had lost its character, there is no escape from the conclusion that the agricultural nature of the land had been abandoned and it was never thereafter intended to be used for agricultural purposes. So its character became that of urban land and as such the entry of Ghair Mumkin, that is to say uncultivable, was not only accarding to the rules but justified in the circumstances of the case and was thereforee, acorrect entry. The same demolishes the case set up by the respondent.
(14) At this stage, I may mention that there is one entry (Ex. D1) for the year 1958-59, where under date 4th October, 1958 some Bajra and Maize are shown to have been grown. This entry has been found fictitidus by the court of first instance and has not been refled upon by the lower appellate court. Nor has either of the counsel relied upon the same and so it does not merit any consideration. But the rest of the entries support the conclusion, which I have drawn and which is consistent with the conduct of the vendor as the proprietor of the land as well as the circumstances of the case and the evidence on record.
(15) The land had lost its character as agricultural land is also borne out by other documents and circumstances of the case. On 4th March, 1954 (vide Ex. DW11/2), a notification had been issued by the Chief Commissioner, Delhi, declaring certain areas as Municipality of the Second Class under section 4(6) of the Punjab Municipal Act, 1911. This notification was issued to various authorities. On 5th April, 1954 the Municipal Committee, which was known as South Delhi Municipal Committee vide Ex. DWII/3 proposed to levy a house-tax on the owners of the building and lands within the Municipality as provided by section 61 of the Punjab Municipal Act and the proposal was accepted on 11th April, 1954. On 27th December, 1954 the aforesaid Municipal Committee took over the sanitary services of the area (Vide Ex. DW11/4) and the said proposal was accepted on 10th January, 1955. It is true that as a matter of law, the mere fact that a Municipality has been constituted for the area will not be conclusive, but in the circumstances of the case, it is an extremely important piece of evidence to establish that the lands in the area were, in fact, no longer agricultural and were being treated as urban lands in a town, both by the Government and the Municipal Committee as well as the proprietors. Subsequent to March, 1954 nobody and certainly not Chandi Ram, vendor, thought of using the land in dispute for agricultural purposes, nor had the same been used as such, as is evident from the evidence. On the other hand, he started developing it as plots of abadi land and actually sold one piece of 300 sq. yds. in March, 1955 and another similar area in 1955 at a rate of 9.00 per sq. yd. before we come to the sale in dispute. Moreover, the Municipal Committee could certainly not think of imposing a house- tax on the land in dispute had the same been agricultural land. The public acts and documents, thereforee, are a very strong piece of evidence to show that on the date of sale the land in dispute had ceased to be agricultural land subject to the right of pre-emption.
(16) The activities in the neighborhood also point to the same conclusion. On 2nd May, 1955 the Delhi lmporvement Trust wrote a letter (Ex. Dw 4/1) to the Delhi Land and Finance Housing & Construction Limited approving the lay-out plan submitted by the Company. This lay-out plan related to the land including the one owned by Chandi Ram and the one in dispute in suit. Presumably, there must have been some arrangement between Chandi Ram and the Company for development of the area into residential plots. The original documents have not been produced, but Ex. Dw 5/1, the sale deed dated 18th March, 1955 executed by the vendor, Chandhi Ram, mentioned that the plot of land sold there under was according to the plan of the Delhi Improvement Trust and it described the neighbouring boundaries of other plots. The aforesaid lay-out plan relates to the land which is now known as New Delhi South Extension Part 1 and the same was eventually developed by the company and the plot of land in dispute falls within it. The Secretary of the Company deposed to this fact and also stated that the lay-out plan had been first submitted to the Delhi Improvement Trust and approved by it and later on the constitution of the Delhi Development Provisional Authority in 1956 the same plan was again sanctioned with minor amendments. This statement is corroborated by Ex. Dw 10/1 and Ex. Dw 1/1, which are the proceedings of the Delhi Development Provisional Authority approving the aforesaid lay-out plan of the Delhi Land & Finance construction Company on 16th April, 1956 and the sanction was communicated on 24th April, 1956 by Ex. Dw 4/2. Even the lower appellate court was definite in holding that on or after 16th April, 1956 the land had ceased to be agricultural and had unmistakably become urban land for purposes of housing, but it declined to draw the inference in favor of the appellant on the ground that the sale in his favor had taken place on 12th April, 1956. The lower appellate court has obviously fallen into an error.
(17) The question at issue is not whether the land had or had not been developed as the land for residential accommodation in a town. The question is whether the land in dispute was on the date of the sale an agricultural land as defined by the statute or it had ceased to be agricultural in character and the burden rests on the plaintiff preemptor. I have no doubt that on the evidence on record the land in dispute has certainly ceased to be agricultural since March, 1954 and there is not an iota of evidence to show that it continued to be agricultural either by use or by any intention to use it as such. It had certainly lost its original character and was fast growing into an urban land for housing purposes. The process was continuous one and the whole of the evidence on record points to this conclusion. Surely, the lay-out plan, which was sanctioned by the authority on 16th April, 1956 must have been submitted earlier and was materially and substantially the same as had been sanctioned by the Delhi Improvement. Trust in 1955. The whole process, thereforee, shows the trend towards the urbanisation to the exclusion of agricultural use of the land.
(18) The other documents on the file consist of a sale deed by the same vendor in respect of the plot adjacent to the plot of land in dispute conveyed on 1st November, 1956 at the rate of Rs. 14.00 per sq. yd. together with a plan. The document, dated 12th August, 1957 (Ex. Dw 2/1) is a letter from the New Delhi South Extension Plot Holders Association to the Ministry of Health in which they stated that the colony had come into existence in April, 1955 and the sale of plots had started by the D. L. F. Company and the layout plan had been approved in May, 1955 and that the external development had been made and water and sewerage had been provided. The documents also include an agreement dated 24th March, 1961 (Ex. Dw 4/3) between Chandi Ram and the aforesaid Construction Company regarding the exchange of a piece of land other than the land in dispute. In this agreement, it is mentioned that the vendor, Chandi Ram had allowed the Company to assume the various plots of land of Khasra No. 140 and that he had sold the land in various plots including the plot of land in dispute and on 29th March, 1961 there was an agreement (Ex. Dw 12/1) between the vendor and the said company regarding the development charges. These documents only support the conclusion that on the date of the sale the vendor had abandoned the use of the land in dispute as agricultural land an,d he was actively prosecuting its development and sale as plots for residential purposes.
(19) At this stage, reference may also be made to the sale deed Ex. Pi in question. This sale deed executed by the vendor recites that the plot of land bears No. 93 and it has been prepared by the Town Planner and the sale was made at the rate of Rs. 12.00 per sq. yd. The question is not whether the plot had or had not, in fact, been demarked, which question I expressly leave open for the moment, but the sale deed does indicate that on or before the date of sale the vendor had abandoned the use of the land in dispute as agricultural land and had no intention to use it as such for several years prior to the date of sale and the land had become Ghair Mumkin plot and had been sold at a rate which is incompatible with price being of agricultural land. All the documents unmistakably point only to one conclusion that the proprietor had abandoned the use of the land as garicultural. He had absolutely no intention to use it for agricultural purposes and in fact he had not been using it since at least March, 1954. On the other hand, he had been selling the adjoining land as plots of land for building purposes. The area had ceased to the agricultural and was being developed and used as a town. The land in dispute would, thereforee, not be an agricultural land. Even otherwise, it would be preposterous to hold that in New Delhi South Extension Part I area, where there were houses and buildings coming up all around, contained only one piece of land in dispute measuring about 400 sq. yd. being used for agricultural purposes. Before the sale, it had no agricultural operations, it fell within the Municipality, and was subject to house-tax and in respect of which the lay-out plan had been sanctioned and the sewerage being laid. Could it possibly be agricultural land and had it not changed its character The answer is emphatic no. The finding is not sustainable.
(20) Mr. Chawla, learned counsel for the respondent has strenuously argued that the finding of the lower appellate court, although in disagreement with the court of first instance, is a finding of fact and so is binding on this court and is not open to review in second appeal. He has cited the well known authorities on the subject, namely, V. Ramachandra Ayyar v. Ramalingam Chettiar : 3SCR604 , and Madamanchi Ramappa v. Muthaluru Bojjappa : 2SCR673 . He has also cited Sheikh Abdul Rahman v. Khan Sahib Haji Rashid Ahmad, Air 1937 Lahore 182(1). In the last mentioned authority the court observed that the question whether the property in dispute came within the definition of section 3 of the Punjab Preemption Act was one of law, but the determination of this question depend upon whether the property formed part of the town of Delhi or whether it was a village immovable property. It, thereforee, follows that whether the land in dispute falls within the definition of agricultural land within the Punjab Pre-emption Act is clearly a question of law. In arriving at this finding in disagreement with the court of first instance, the lower appellate court has ignored from consideration relevant and material evidence on the ground that it was of a date subsequent to the date of sale. But it failed to appreciate that that evidence was relevant and threw light on the nature of the land as it existed prior to the sale. The court below has also erred in its approach to the legal question. The question it was required to determine was whether the land in dispute on the date of sale was agricultural within the statutory definition. The court had to answer whether before the said date it had ceased to be so, but not that it was actually developed into abadi three or four days later. This cannot be used to hold that till the sale the land was agricultural. The finding of the lower appellate court is, thereforee, not binding on this court (see Gurbaksh Singh v. Nikka Singh : AIR1963SC1917 , Radha Nath Seal v. Haripada Jana : AIR1971SC1049 , and Damadilal v. Parashram : AIR1976SC2229 .
(21) In the instant case, the facts are fully established and I do not find any substantial difference between the findings of fact of the court of first instance and the lower appellate court as well as those recorded by me. The legal inference from those facts has been wrongly drawn by the lower appellate court and I am of the view that the inference drawn by the trial court was correct. To recapitulate, the revenue records show that the land in dispute had been used for agricultural purposes only up to the year March, 1954. This has been found by all the courts. The revenue entries for the subsequent period show that the land was Khali or fallow, and then the same has been shown as uncultivable. Surely, according to these entries, the land had ceased to be agricultural. No direct evidence of any cultivation or any purpose subservient to agriculture has been produced to show that the land was being used or even intended to be used for agricultural purposes. The lower appellate court has merely drawn an inference of continuity from the land having been agricultural in 1953. This inference was in the circumstances of the case not at all justified in law. The enormous material on record, which I have discussed above shows that the land had since March, 1954 been neither used nor intended to be used for agricultural purposes, but it was intended to be used for purposes of obadi or construction of house on various plots. The houses were being constructed and had in fact been constructed in the neighborhood partly before and partly after the sale in dispute and a colony had been approved according to law and grown up. Under these circumstances, the only legal inference that could be drawn was that the plaintiff had failed to discharge the onus of proving that the land in dispute was on the date of sale agricultural land. The contesting defendant has succeeded in showing that the land had ceased to be agricultural. The purpose for which it was intended to be used and was being used and was, in fact. used before, at or after the sale, was construction of houses in urban area in the town of New Delhi and not agricultural land in any event. The fact that the building activities were noticed after the final approval of the lay-out plan four days after the sale does not show that the building activity commenced on the agricultural land at the stroke of the clock on any midnight. The building activity is a continuous process and if it was, to use the expression of the lower appellate court, unmistakably clear four days after the sale, then on the date of the sale or earlier the nature of the land and the intention of the proprietor of the land to use it could only be ascribed to urban housing and not agriculture. Once it is found that the land was not agricultural, it is conceded that the plaintiff respondent does not have a right to pre-emption in its respect. The reason is that the right of pre-emption in respect of urban immovable property is not available to the respondent. Consequently, I have no hesitation in setting aside the finding of the lower appellate court on issue No. 3 and restore the finding of the court of first instance. I hold that the land in dispute was on the date of the sale not agricultural land and the plaintiff respondent did not have a right of preemption in its respect. The suit of the plaintiff respondent must, thereforee, fail.
(22) This takes me to the consideration of the second question, which is the subject matter of issue No. 2. The court of first instance held that the suit was barred by time, since it found that the contesting defendant had entered into its possession and gave notice to the world. The lower appellate court has reversed the finding and held that the land was not capable of physical partition and, thereforee, the limitation for purposes of suit for pre-emption would begin from the date of the registration of the sale deed. In view of my finding on issue No. 3, it is not necessary to decide the second issue. However, I am inclined to agree with the lower appellate court that the suit of the respondent is within limitation. The piece of land that had been sold to the appeallant was a vacant plot of land, and although the sale deed recites that possession had been delivered to him it is difficult to find that nobody would be physically occupying it so as to give notice to the world, though the sale deed in dispute dated 12th April, 1956 was registered on 21st May, 1957 and as such the suit giving rise to this appeal instituted on 20th May, 1958 is within time prescribed by Article 10 of the Limitation Act. The issue is, thereforee, answered in favor of the plaintiff.
(23) As a result of the above discussion, the appeal is allowed. The decree of the lower appellate court is set aside and the decree of the court of first instance is restored and the suit of the plaintiff respondent No. 1 is dismissed with costs throughout.