Abhey Singh V. Birbal Dass and Another

RSA/223/1985

AI Insights

The case revolves around a dispute concerning the right of pre-emption over a piece of land sold between two defendants, where the plaintiffs claimed pre-emption based on consanguinity and co-sharer status. The trial court initially decreed in favor of the plaintiffs, granting them possession upon payment of the sale consideration and charges. However, this decision was contested by the defendants through appeals, leading to a complex legal battle that reached the High Court of Punjab and Haryana. The High Court, after examining the evidence and legal provisions, concluded that the land in question did not qualify as agricultural land and was thus not pre-emptible under the relevant Act.

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 799604 (HC-CHANDIGARH)
• Appeal Type: Others
• Pronouncement Date: 06-12-2011
• Assessment Year: misc
• Other Referred Cases: Atam Parkash v. State of Haryana, Mandir Gita Bhawan Siri Kurukshetra Vs. Sadhu Ram, Lala Khazanchi Shah. Vs. Haji Niaz Ali, Hero Vinoth (minor) Vs. Seshammal, Karnail Singh and others Vs. Jabir Singh and others, Bachan Singh and others Vs. Ramel Kaur, Salamat Rai Vs. Kanshi Ram, Commissioner of Wealth Tax, Andhra Pradesh V. Officer-In-Charge (Court of Wards), Paigah, Sarifabibi Mohmed Ibrahim (Smt.) and others Vs. Commissioner of Income Tax, Gujarat
• Laws Referred To: Punjab Pre-emption Act, 1913, Punjab Alienation of Land Act, 1900, Land Revenue Assessment Rules, 1929
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: AMIT JHANJI
• Assessee Lawyers: BHOOP SINGH
• Keywords: Agricultural Land; Court fees; Municipal Limits; Pre-emption; Urban immoveable property
• Section: 5; 7; 3(1); 4; 3(3); 2(3)

Judgement Text

"RSA No. 223 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 223 of 1985 Date of Decision: 6.12,2011 Abhey Singh ….Appellant Vs. Birbal Dass and another ….Respondents …. CORAM: Hon’ble Mr. Justice Rameshwar Singh Malik Present: Mr. Bhoop Singh, Advocate for the appellant. Mr Amit Jhanji, Advocate for the respondents. 1. Whether Reporter of the local paper may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? ***** Rameshwar Singh Malik, J. This appeal has been filed by the defendant against the judgment and decree dated 18.10.1984 passed by the learned Additional District Judge,Jind, whereby his first appeal was dismissed upholding the judgment and decree dated 25.8.1983 passed by the learned trial court decreeing the suit for possession by way of pre-emption. Facts first. Plaintiffs filed the suit for possession by way of pre-emption challenging the sale deed dated 26.5.1980, vide which defendant No.2 sold to defendant No.1 (appellant), land measuring 46 kanals 2 marlas comprising Khasra No. 153 killa No.16 (8-0), 24 (8-0), 25 (8-0) Khasra No. 178 Killa No.14 (8-0), 5(8-0), 612 (4-15), Khasra No. 153/12/2, Min(0-2) and Khasra No. 672 Min (1-5) as described in the head note of the plaint. Plaintiffs claimed their right of pre-emption on the basis RSA No. 223 of 1985 2 of consanguinity as well as being co-sharers. Name of defendant No.2 Smt. Bhanti Devi (vendor) was struck off from the array of parties by the learned trial court vide its order dated 8.8.1981, on the basis of statement made by learned counsel for the plaintiffs, to the effect that he had given up defendant No.2 being unnecessary. Defendant (vendee), filed his written statement contesting the suit of the plaintiffs. However, it was not denied that the vendor Smt. Bhanti Devi was widow of Budh Dev, brother of the plaintiffs. The plaintiffs filed their replication to the written statement of defendant No.1. On completion of the pleadings, the learned trial court framed the following issues:- 1. Whether the plaintiffs have a superior right of pre- emption? OPP; 2. Whether the sale consideration of Rs. 49,000/- was fixed in good faith or actually paid? OPD; 3. If issue No.2 is not proved what was the market value of the suit land? OPP ; 4. Whether the plaintiffs were a consenting party to the sale? OPD; 5. Whether the suit land is not pre-emptible? OPD; 6. Whether the court fee is deficient? OPD; 7. Whether the suit has been filed beyond the period of limitation? OPD; 8. Whether the defendant set No.1 is entitled to stamp and registration charges, if so to what amount? OPD; 9. Whether 1/5th pre-emption money has not been deposited in legal manner? OPD; 9-A Whether the plaintiffs are barred to file this suit for pre- emption, as they have not raised this plea in the previous suit for declaration which is already pending as provided under order 2 rule 2. C.P.C.? OPD. 10. Relief. RSA No. 223 of 1985 3 Before proceeding with the case on merits, issue No.6 was decided by the learned trial court vide its order dated 7.5.1983 holding that as per the evidence available on the file, the suit land was situated within the municipal limits of Narwana. It was further held that the plaintiffs were liable to pay ad-valorem court fees on the sale price of land i.e. `. 49,000/-. Since this order was not challenged by the plaintiffs, it became final between the parties. The learned trial court decided issue No.1 in favour of the plaintiffs and against the defendant. Issue No.2 was decided in favour of the defendant and against the plaintiffs. Issue No.3 was decided as per the findings recorded on issue No.2. Issues No. 4 and 5 were decided against the defendant and in favour of the plaintiffs. Issue No.6 had been decided earlier vide interim order dated 7.5.1983. Issue No.7 was decided against the defendant and in favour of the plaintiffs. Issue No.9 and 9A were decided against the defendant and in favour of the plaintiffs. The suit of the plaintiffs was accordingly decreed by the learned trial court vide its judgment and decree dated 25.8.1983. The plaintiffs were held entitled to the possession of the suit land on depositing an amount of ` 49,000/- as sale consideration plus ` 6627/- as stamp and registration charges, the total being ` 55627/-minus ` 9800/-, i.e. 1/5th pre-emption amount already deposited by the plaintiffs. Dissatisfied, the defendant filed his first appeal. However, the defendant restricted his appeal before the learned Additional District Judge, qua issue No.5 only. The findings of the learned trial court on issues No. 1,2,3,4,6,7,8,9 and 9A were not challenged which were confirmed by the learned Additional District Judge, vide para No.7 of the impugned judgment dated 18.10.1984. It appears that the defendant had RSA No. 223 of 1985 4 given up his claim for the suit land except the land measuring 1 kanal 6 marlas (sic. 1 kanal 5 marlas) as recorded in sale deed dated 26.5.1980 (Ex.P/16). However, the learned Additional District Judge, vide his judgment and decree dated 18.10.1984, dismissed the appeal of the defendant upholding the judgment and decree dated 25.8.1983 passed by the learned trial Court. Feeling aggrieved against the judgments and decrees passed by the learned courts below, the defendant (hereinafter referred to as ‘appellant’) has approached this Court by filing the present regular second appeal. The appellant, along with his appeal, also filed an application under Order 41 Rule 27 of the Code of Civil Procedure for additional evidence. The appeal was allowed by this Court vide order dated 27.5.1986 which reads as under:- “In view of the decision of the Supreme Court in Atam Parkash v. State of Haryana, 1986-1 Punjab Law Reporter 329, this appeal, filed by the vendee is to be allowed because the right of pre-emption was claimed on the basis of consanguinity. Consequently, this appeal succeeds and is allowed. The judgment and decree under appeal are set aside and the plaintiff’s suit stands dismissed with no order as to costs. Sd/- 27.5.1986 Judge” The plaintiffs (hereinafter referred to as ‘respondents’) filed Special Leave Petition (civil) No. 12900 of 1986 before the Hon’ble Supreme Court of India against the above said order dated 27.5.1986 passed by this Court. The Special Leave Petition was granted and the Hon’ble Apex Court allowed the Civil Appeal No. 2209 of 1986 remanding RSA No. 223 of 1985 5 the matter back to this Court vide order dated 3.4.1989 which reads as under:- “Special Leave granted. Heard learned counsel for the parties. It appears that the question of being a co-sharer has not been considered by the High Court. The judgment of the High Court is set aside and the matter is sent back to the High Court. The High court will hear the parties and dispose it of in accordance with law. The parties will be free to raise their contentions before the High Court. It is expected that the High Court will hear and dispose of the matter as expeditiously as possible. The appeal is disposed of accordingly. No order as to costs. Sd/- Judge Sd/- New Delhi Judge April 3, 1989 After considering the rival contentions raised on behalf of both the parties, the following substantial questions of law were framed vide order dated 11.11.2011:- (i) “Whether the land measuring 1 kanal 5 marlas sold vide sale deed dated 26.5.1980 out of 6 kanals 6 marlas comprising Khasra No. 672 was the urban immovable property in view of Section 3(3) of the Punjab Pre- emption Act, 1913 ( for short the `Act of 1913’) and was not pre-emptable in view of Section 7 of the Act of 1913, without there being any custom; (ii) Whether the land measuring 1 kanal 5 marlas comprising in Khasra No. 672 was not agricultural land RSA No. 223 of 1985 6 because of which the same was saved from pre- emption in view of the provisions contained in Section 7 of the Act of 1913; (iii) Whether both the learned courts below have misread the documentary as well as oral evidence brought on the record by both parties besides misreading and misinterpreting the provisions of Sections 3(3) and 7 of the Act of 1913.” Sh. Bhoop Singh, learned counsel for the appellant fairly submitted at the very outset that present appeal may be treated only qua the area of 1 kanal 5 marlas comprising Khasra No. 672 out of the total suit land measuring 46 kanal 2 marlas as there is no challenge against the impugned judgments and decrees qua the remaining suit land. Learned counsel for the appellant submits that Khasra No. 672 was situated within the municipal limits of Narwana as per order dated 7.5.1983 passed by the learned trial court. He further submits that this order dated 7.5.1983 was not challenged by the respondents and had become final between the parties. Learned counsel for the appellant also submits that the findings recorded by the learned courts below on issue No.5 are palpably erroneous being contrary to the pleadings and judicial order dated 7.5.1983 besides against the provisions of law contained in Section 3(1) and 3(3), Section 4 and Section 7 of the Punjab Pre-emption Act, 1913 (hereinafter referred to as “Act of 1913) as the land of Khasra No. 672 was not ‘agricultural land.’ Learned counsel for the appellant further submits that appellant never invoked the provisions of Section 5 of Act of 1913 and the learned courts below misread the pleadings as well as evidence available on record. Learned counsel for the appellant, to buttress his contentions, RSA No. 223 of 1985 7 submits that Additional District Judge did not consider the definition of ‘agricultural land’ and ‘urban immoveable property’ as defined in Section 3(1) and 3(3) read with Sections 4 and 7 of the Act of 1913. Referring to the statements of plaintiffs as PW-1, learned counsel further submits that the plaintiff did not utter even a single word in his examination-in-chief that the land measuring 1 kanal 5 marlas comprising Khasra No. 672 (hereinafter referred to as “Khasra No.672 (1 K 5 M)” ) was not within the municipal limits of Narwana. He further submits that the plaintiffs could not deny this material fact regarding falling of land in Khasra No. 672 (1 K 5 M) within the municipal limits of Narwana for more than one reasons. Referring to the pleadings, the learned counsel submits that the appellant took a specific plea in para No.7 of his written statement that the suit land was within the municipal limits of Narwana. The plaintiffs did not deny this material fact in their replication. Further, this fact stood proved by judicial order dated 7.5.1983 passed by the learned trial court. Learned counsel for the appellant further submits that the cumulative effect of the pleadings, read with the statements of PW-1, DW-1 and DW-2, is that Khasra No. 672 was within the municipal limits of Narwana. He also submits that Khasra No. 672 was allotted during the consolidation proceedings in lieu of old Khasra No. 1127/5 which is clear from Ex. D-7, the jamabandi for the year 1966-67. All the jamabandis either produced by the appellant or respondents show that the land measuring 6 kanals 6 marla comprising Khasra No. 672 was ‘banjar qadim’ right from 1953-54. This land was not agricultural land as per the definition contained in Section 3(1) of the Act of 1913 read with the definition of word ‘land’ provided in Section 2(3) of the Punjab Alienation Land Act, 1900 (hereinafter referred to as ‘the Act of 1900) and rule 2(2) (a) of the Land RSA No. 223 of 1985 8 Revenue Assessment Rules, 1929 (hereinafter referred to as ‘Rules of 1929). Learned counsel for the appellant also submits that there was cogent and convincing evidence available on record of the case, to show that land measuring 6 kanals 6 marlas comprising Khasra No. 672, out of which land in Khasra No.672 (1 K 5 M) was sold vide sale deed dated 26.5.1980, was not pre-emptible in view of the provisions of Section 3(1) and 3(3) of the Act of 1913, Section 2(3) of the Act of 1900 and also Rule 2(2)(a) of the Rules of 1929. Besides, he submits that the land measuring Khasra No.672 (1 K 5 M) was since within the municipal limits of Narwana and was ‘urban immoveable property’ as defined in Section 3(3) of the Act of 1913, it was not pre-emptible in view of the provisions of Section 7 of the Act of 1913. In support of his contentions, learned counsel for the appellant relies upon Mandir Gita Bhawan Siri Kurukshetra Vs. Sadhu Ram AIR 1939 (Lahore)-554, Lala Khazanchi Shah. Vs. Haji Niaz Ali AIR 1940 (Lahore)-438-DB and Hero Vinoth (minor) Vs. Seshammal 2006 (2) RCR (Civil) 677 S.C. Concluding his arguments, learned counsel for the appellant submits that the present appeal is liable to be allowed, the impugned judgments and decrees are liable to be set aside and the suit of the plaintiffs is liable to be dismissed qua land in Khasra No.672 (1 K 5 M). It is submitted that in case this Court finds evidence qua Khasra No. 672 insufficient, the application for additional evidence filed by the appellant along with appeal may be allowed. The appellant may be permitted to produce the additional evidence in the form of certificate dated 31.12.1984 issued by the Executive Officer, Municipal Committee, Narwana to the effect that Khasra No. 672 was within the municipal limits, as per boundary plan of the Municipal Committee for the year 1975. RSA No. 223 of 1985 9 Per contra, Sh. Amit Jhanji, learned counsel for the respondents, submits that the right of pre-emption of the respondents being co-sharers was not in dispute. Total land sold vide sale deed dated 26.5.1980 was measuring 46 kanals 2 marlas. In para No.7 of the written statement filed by the appellant, there was no reference qua Khasra No. 672. He further submits that DW-1 Bhusan Lal did not say that Khasra No. 672 was within the municipal limits of Narwana as per record i.e. Ex. D-1/1 and D-2/1. He also submits that it has not been proved by the appellant that Khasra No. 672 was within the municipal limits of Narwana and it was `urban immoveable property’. Referring to Section 5 of the Act of 1913, Sh. Jhanji, submits that since the land in Khasra No.672 (1 K 5 M) was recorded as Banjar Qadim in the revenue records. The appellant did not reclaim it as vendee till the decree was passed by the learned trial Court. Thus, this piece of land would not be saved from pre-emption. In support of his contentions, Sh. Jhanji relies upon Full Bench judgment of this Court in the case of Karnail Singh and others Vs. Jabir Singh and others 1974 PLR 482. He also relies upon Bachan Singh and others Vs. Ramel Kaur 1970, PLJ 279 and Salamat Rai Vs. Kanshi Ram, 1918 AIR, 334. Learned counsel for the respondents also submits that since both the Courts below have recorded the concurrent findings of fact, this Court has very limited jurisdiction under Section 100 of the Code of Civil Procedure, 1908 ( hereinafter referred to as ‘CPC’). In this regard, he relies upon Rur Singh(dead) through LRs. and another Vs. Bachan Kaur, 2009(11) SCC-1, Mohan Lal Vs. Nihal Singh, 2001 (8) SCC 584, Mahant Ram Khilawan Das Vs. State of Madhya Pradesh, 2008(11) SCC 613 and RSA No. 223 of 1985 10 Basayya I.Mathad Vs. Rudrayya S.Mathad and others, 2008 (3) SCC- 120. Sh. Amit Jhanji, learned counsel for the respondents, referring to his reply to the application for additional evidence, submits that application was totally bereft of any merits and the same was liable to be dismissed. The appellant cannot be allowed to fill the lacuna in his evidence at this belated stage. Finally, he prays that the appeal is without any substance and the same is liable to be dismissed. I have heard the learned counsel for both the parties and with their able assistance, gone through the record of the case. This court finds force in the contention raised by Sh. Bhoop Singh, learned counsel for the appellant. In the instant appeal, the basic question posed before this court is as to what is the true import of the provisions of Sections 3,4,5 and 7 of the Act of 1913, Section 2(3) of the Act of 1900 and Rule 2(2) (a) of the Rules of 1929, when these are read in the context of present case. The right of pre-emption flows from Section 4 of the Act of 1913, which reads as under:- 4. Right of pre-emption: application of:- The right of pre-emption shall mean the right of a person to acquire agricultural land or village immoveable property or urban immoveable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of foreclosures of the right to redeem such property. All the three terms namely ‘agricultural land’, ‘village immoveable property’, and ‘urban immoveable property’ are defined in Section 3(1), (2) and (3) of the Act of 1913, which are as under:- RSA No. 223 of 1985 11 3. Definitions- In this Act, unless a different intention appears from the subject or context,- (1) ‘agricultural land’ shall mean land as defined in the Punjab Alienation of Land Act, 1900 (XIII of 1900) as amended by Act I of 1907, but shall not include the rights of a mortgagee, whether usufructuary or not, in such land: (2) ‘village immoveable property’ shall mean immoveable property within the limits of a village, other than agricultural land; (3) ‘urban immoveable property’ shall mean immoveable property within the limits of a town, other than agricultural land. For the purposes of this Act a specified place shall be deemed to be a town (a) if so declared by the [State] Government by notification in the Official Gazette, or (b) if so found by the Court; Section 2(3) of the Act of 1900 provides definition of land, as envisaged under Section 3(1) of the Act of 1913:- 2(1) xxxxxx (2) xxxxxx (3) the expression “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 agricultural or for pasture, and includes- (a) the sites of buildings and other structures on such land; (aa) any rights of occupancy acquired under the Punjab Tenancy Act, 1887, the Hazara Tenancy Regulation, 1887 or the Agror Valley Regulation, 1891, as the case may be.” (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 inferior landowner to a superior landowner ; (d) a right to receive rent ; and RSA No. 223 of 1985 12 (e) any right to water enjoyed by the owner or occupier of land as such; (f) any right of occupancy; Rule 2(2) (a) of the Rules of 1929 which defines classes of land including banjar qadim, reads as under. 2. Classes of land. – XXX XXX XXX XXX XXX XXX XXX XXX (2) The most important classes of uncultivated land are as follows:- (a) banjar qadim: land which has remained unsown for eight successive harvests; and The documentary evidence produced by the respondents nowhere shows that the land in Khasra No.672 (1 K 5 M) was sown for 8 successive harvests immediately before the date of sale i.e. 26.5.1980 to bring it within the definition of ‘agricultural land’. As per the documentary evidence of respondents themselves, this land in Khasra No.672 (1 K 5 M) remained uncultivated for more than 20 years. Self serving statement of plaintiff-respondent Birbal as PW-1 is contrary to his own pleadings and documentary evidence as well. Thus, his evidence does not inspire confidence. On the other hand, the appellant has led cogent and convincing evidence to show that this part of the suit land in Khasra No.672 (1 K 5 M) was not agricultural land. As per relevant revenue record available on the case file, this land had not been assessed to land revenue for more than 27 years right from the year 1953-54 till the date of sale, i.e., 26.7.1980. It is so made out from the evidence produced by the appellant in the form of jamabandis, mutations and khasra girdawaris as Ex. D-5 to Ex. D-12. Ex. RSA No. 223 of 1985 13 D-8 is the jamabandi for year 1953-54 which shows that the land comprising khasra No. 1127/5 was banjar qadim. Ex. D-7(Misal Hakiat), which is the jamabandi for the year 1966-67, shows that this khasra No. 672 measuring 6 kanals 6 marlas was allotted in lieu of old khasra No. 1127/5 during consolidation proceedings. Ex. D-9 is the jamabandi for the year 1978-79, which is immediate before the sale deed dated 26.5.1980, wherein this part of the suit land in Khasra No.672 (1 K 5 M) is shown as banjar qadim. Ex. D-6 is the khasra girdawari from 1979 to 1982, which also shows that the land measuring 6 kanals 6 marlas comprising khasra No. 672, was banjar qadim and the same had been mutated, vide mutation No. 7408, in the name of the appellant. Numerous documents produced by the plaintiffs-respondents as Ex. P-5 to P-14, which are again the revenue documents in the form of jamabandis and mutations, also support this material fact that this part of the suit land in Khasra No.672 (1 K 5 M) was banjar qadim. Presumption of truth, though rebuttable, is attached to the revenue entries recorded in the jamabandis as provided under Section 44 of the Punjab Land Revenue Act, 1887. The appellant appeared as DW-4 and specifically deposed before the learned trial court that the land comprising khasra No. 672 was banjar qadim and ghair mumkin, besides, this land was not assessed to land revenue. He also successfully stood the acid test of cross examination in this regard. Another piece of evidence in the form of Ex.-DX-1 is the order dated 16.7.1981, passed by Assistant Collector, Second Grade, Narwana in case No. 2 instituted by the plaintiffs- respondents on 2.3.1981 against the present appellant seeking correction of khasra girdawari qua khasra No. 153 and 178. It is pertinent to note here that land comprising in these two khasra Nos., was also sold by Smt. RSA No. 223 of 1985 14 Bhanti Devi to the present appellant, vide same sale deed dated 26.5.1980. Plaintiffs-respondents claimed that since they were in cultivating possession of the land comprising in these two khasra Nos. 153 and 178, the khasra girdawaris may be recorded in their favour. This fact pleaded by the plaintiffs-respondents themselves would show that the land measuring 6 kanals 6 marlas comprising in khasra No. 672, was not the agricultural land. Had it been so, plaintiffs would have claimed, the correction of khasra girdawari in their favour, regarding this part of the suit land also. The principle of res ispa loquitur (the thing speaks for itself) is, thus, attracted in the present case. When the provisions of Section 3(1) of the Act of 1913, Section 2(3) of the Act of 1900 and Rule 2(2)(a) of the Rules of 1929 are read together in the context of the present case, it gets crystallized that the land in Khasra No.672 (1 K 5 M) was not agricultural land and the same was saved from pre-emption as envisaged under Section 4 of the Act of 1913. The legislative intent behind framing of any particular piece of legislation is always a guiding factor for the harmonious construction thereof. After careful perusal of the provisions of law contained in Section 3(1) of the Act of 1913, Section 2(3) of the Act of 1900 and Rule 2(2)(a) of the Rules of 1929, this Court comes to the irresistible conclusion that the land, which remains unsown for eight successive harvests, will not come within the definition of ‘agricultural land’ under Section 3(1) of the Act of 1913. The land in Khasra No.672 (1 K 5 M) not only remained unsown for 27 years but was also not assessed to land revenue. For this reason as well, this piece of land was not agricultural land and the same was not pre-emptible in view of the provisions of Section 4 of the Act of 1913. RSA No. 223 of 1985 15 In fact, the jamabandis from the year 1953-54 till 1978-79, besides the khasra girdawaris even for later years, produced on the record by both the parties, show that during the preceding 27 years before its sale on 26.5.1980, this part of suit land remained uncultivated. It was neither occupied nor let out for agricultural purposes or for purposes subservient to agriculture or for pasture as provided under Section 2(3) of the Act of 1900. Thus, this piece of land in Khasra No. 672 (1 K 5 M) was not satisfying the requirements of law as envisaged under Section 3(1) of the Act of 1913 read with Section 2(3) of the Act of 1900, so as to come within the definition of agricultural land. Further, in all the jamabandis produced by both the parties, in the form of documentary evidence, this piece of land in Khasra No.672 (1 K 5 M) has been recorded as ‘Banjar Qadim’. Right from the year 1953 till the date of its sale on 26.5.1980, this land remained unsown. Thus, it was uncultivated land, as envisaged under Rule 2(2) (a) of the Rules of 1929. Having remained uncultivated, this part of the suit land was not subject to the assessment of land revenue. Once this land in Khasra No.672(1 K 5M) was not assessed to the land revenue, it was not satisfying the requirements of law to fall within the definition of agricultural land under Section 3(1) of the Act of 1913. In this view of the matter, this Court has no hesitation to conclude that the land in Khasra No.672 (1 K 5 M) was not pre-emptible under Section 4 of the Act of 1913. The view taken by this Court is supported by the ratio of the judgments of the Hon’ble Supreme Court in Commissioner of Wealth Tax, Andhra Pradesh V. Officer-In-Charge (Court of Wards), Paigah, (1976)3 Supreme Court Cases 864 and Sarifabibi Mohmed Ibrahim RSA No. 223 of 1985 16 (Smt.) and others Vs. Commissioner of Income Tax, Gujarat, 1993 Supp (4) Supreme Court Cases 707. The Hon’ble Supreme Court, in the case of Commissioner of Wealth Tax, Andhra Pradesh (supra), while dealing with the word `land’ used for agricultural purposes, with a view to derive agricultural income therefrom, for the purpose of assessment to land revenue and for payment of income tax, held as under :- “13. The Full Bench stated its conclusions on questions of law as follows : (1) The words `agricultural land’ occurring in Section 2(e)(1) of the Wealth Tax Act should be given the same meaning as the said expression bears in Entry 86 of List I and given the widest meaning :- (2) The said expression not having been defined in the Constitution, it must be given the meaning which it ordinarily bears in the English language and as understood in ordinary parlance ; (3) The actual user of the land for agriculture is one of the indicia for determining the character of the land as agricultural land ; (4) Land which is left barren but which is capable of being cultivated can also be `agricultural land’ unless the said laid is actually put to some other non-agricultural purpose, like construction of buildings or an aerodrome, runway, etc. thereon, which alters the physical character of the land rendering it unfit for immediate cultivation ; RSA No. 223 of 1985 17 (5) If land is assessed to land revenue as agricultural land under the State revenue law, it is a strong piece of evidence of its character as agricultural land; (6) Mere enclosure of the land does not by itself render it a non agricultural land ; (7) The character of land is not determined by the nature of the products raised, so long as the land is used or can be used for raising valuable plants or crops or trees or for any other purpose of husbandry ; (8) The situation of the land in a village or in an urban area is not by itself determinative of its character. 14. The Full Bench rejecting the effect of such features as construction of a palace and the location of the land within its compound said : The land is of a large extent of 108 acres and abuts Hussain Sagar tank and has two wells in the land itself. These indicate that the land possesses all the characteristics of agricultural land and that it is capable of being put to agriculture. It is also not disputed that the land is vacant and has not been actually put to any purpose other than agriculture and that the physical character of the land is not such as to render it unfit for immediate cultivation. The other relevant fact is that the land has been admittedly assessed to land revenue as agricultural land under Section 50 of the Hyderabad Land Revenue Act. These factors in our opinion, strongly indicate that the land in question is agricultural land. RSA No. 223 of 1985 18 15. We think that it is not correct to give as wide a meaning as possible to terms used in a statute simply because the statute does not define an expression. The correct rule is that we have to endeavour to find out the exact sense in which the words have been used in a particular context. We are entitled to look at the statute as a whole and given an interpretation in consonance with the purposes of the statute and what logically follows from the terms used. We are to avoid absurd results. If we were to give the widest possible connotation to the words “agricultural land”, as the Full Bench of the Andhra Pradesh High Court seemed inclined to give to the term “agricultural land”, we would reach the conclusion that practically all land, even that covered by buildings, is “agricultural land” inasmuch as its potential or possible use could be agricultural. The object of the Wealth Tax Act is to tax surplus wealth. It is clear that all land is not excluded from the definition of assets. It is only “agricultural land” which could be exempted. Therefore, it is imperative to give reasonable limits to the scope of the “agricultural land”, or, in other words, this exemption had to be necessarily given a more restricted meaning than the very wide ambit given to it by the Andhra Pradesh Full Bench. 24. For the reasons already given, we do not think that the term “agricultural land” had such a wide scope as the Full Bench appears to have given it for the purposes of the Act we have before us. We agree that the determination of the character of land, according to the purpose for which it is RSA No. 223 of 1985 19 meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case. What is really required to be shown is the connection with an agricultural purpose and user and not the mere possibility of user of land, by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality, which will only affect its valuation as part of “assets”, but its actual condition and intended user which has to be seen for purposes of exemption from wealth tax. One of the objects of the exemption seemed to be to encourage cultivation or actual utilization of land for agricultural purposes. If there is neither anything in its condition, nor anything in evidence to indicate the intention of its owners or possessors, so as to connect it with an agricultural purpose, the land could not be “agricultural land” for the purposes of earning an exemption under the Act. Entries in revenue records are, however, good prima facie evidence. We do not think that all these considerations were kept in view by the taxing authorities in deciding the question of fact which was really for the assessing authorities to determine having regard to all the relevant evidence and the law laid down by this Court.” Similarly, the following observations made by the Hon’ble Supreme Court in Sarifabibi Mohmed Ibrahim (Smt.) and others (supra) are apposite :- “8. On a consideration of the contending factors the High Court held that it must be held to be a non agricultural land. RSA No. 223 of 1985 20 13. The first decision of this Court which considered the meaning of the expression “agricultural land” is in CIT V. Raja Benoy Kumar Sahas Roy, AIR 1957 SC 768. But the question there was whether the income from forest land derived from sal and piyasal trees, `not grown by human skill and labour’ constitutes agricultural income ? The decision that directly considered the issue, though under the Wealth Tax Act, is in CWT V. Officer-in-Charge (Court of Wards), Paigah (hereinafter referred to as the `Begumpt Palace case’). It was an appeal from a Full Bench decision of the Andhra Pradesh High Court. The High Court had taken the view, following a decision of the Madras High Court in T. Sarojini Devi Vs.T. Sri Krishna that the expression “agricultural land” should be given the widest meaning. It held that the fact that the land is assessed to land revenue as agricultural land under the State Revenue Law is a strong piece of evidence of its character as an agricultural land. On appeal, a Constitution Bench of this Court held that : (a) inasmuch as agricultural land is exempted from the purview of the definition of the expression “assets”, it is “impossible to adopt so wide a test as would obviously defeat the purpose of the exemption given.” The idea behind exempting the agricultural land is to encourage cultivation of land and the agricultural operations. “In other words this exemption had to be necessarily given a more restricted meaning that the very wide ambit given to it by the Full Bench of the Andhra Pradesh High Court.” (b) What is really required to be shown in the connection with an agricultural purpose and RSA No. 223 of 1985 21 user and not the mere possibility of user of land by some possible future owner or possessor, for an agricultural purpose. It is not the mere potentiality but its actual condition and intended user which has to be seen for purposes of exemption. (emphasis added) (c) “The person claiming an exemption of any property of his from the scope of his assets must satisfy the conditions of the exemption.” (d) “The determination of the character of land, according to the purpose for which it is meant or set apart and can be used, is a matter which ought to be determined on the facts of each particular case.” (e) The fact that the land is assessed to the Land Revenue as agricultural land under the State Revenue Law is certainly a relevant fact but it is not conclusive. 16. The decision of Gujarat High Court in CIT V. Siddharth J. Desai relied upon strongly by the learned counsel for the appellant, reviewed the several earlier decisions of the Gujarat High Court as well as the decision of this Court in Begumpet Palace and has evolved the following 13 factors/indicators applying which the question has to be answered. The 13 factors are the following :- “(1) Whether the land was classified in the revenue records as agricultural and whether it was subject to the payment of land revenue ? (2) Whether the land was actually or ordinarily used for agricultural purposes at or about the relevant time ? RSA No. 223 of 1985 22 (3) Whether such user of the land as for a long period or whether it was of a temporary character or by way of a stopgap arrangement ? (4) Whether the income derived from the agricultural operations carried on in the land bore any rational proportion to the investment made in purchasing the land ? (5) Whether, the permission under Section 65 of the Bombay Land Revenue Code was obtained for the non-agricultural use of the land ? If so, when and by whom (the vendor or the vendee) ? Whether such permission was in respect of the whole or a portion of the land ? If the permission was in respect of a portion of the land and if it was obtained in the past, what was the nature of the user of the said portion of the land on the material date ? (6) Whether the land, on the relevant date, had ceased to be put to agricultural use ? If so, whether it was put to an alternative use ? Whether such cesser and/or alternative user was of a permanent or temporary nature ? (7) Whether the land, though entered in revenue records, had never been actually used for agriculture, that is, it had never been ploughed or tilled ? Whether the owner meant or intended to use it for agricultural purposes ? RSA No. 223 of 1985 23 (8) Whether the land was situate in a developed area ? Whether its physical characteristics, surrounding situation and used of the lands in the adjoining area were such as would indicate that the land was agricultural ? (9) Whether the land itself was developed by plotting and providing roads and other facilities ? (10) Whether there were any previous sales of portions of the land for non-agricultural use ? (11) Whether permission under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, was obtained because the sale or intended sale was in favour of a non-agriculturist ? If so, whether the sale or intended sale to such non-agriculturist was for non- agricultural or agricultural user ? (12) Whether the land was sold on yardage or on acreage basis ? (13) Whether an agriculturist would purchase the land for agricultural purposes at the price at which the land was sold and whether the owner would have ever sold the land valuing it as a property yielding agricultural produce on the basis of its yield ? At the risk of repetition, we may mention that not all of these factors would be present or absent in any case and that in each case one or more of those factors may make appearance and that the ultimate RSA No. 223 of 1985 24 decision will have to be reached on a balanced consideration of the totality of circumstances. 21. We are, therefore, of the opinion that the High Court was right in holding that the said land was not an agricultural land at the time of its sale and that the income arising from its sale was not exempt from the capital gains tax. The appeals accordingly fail and are dismissed. No costs.” Respectfully following the law laid down by the Hon’ble Supreme Court in the abovenoted judgements, it is unhesitatingly held that the land in Khasra No.672 (1 K 5 M) was not agricultural land, when it was sold on 26.5.1980. I say so because this land, as noted above, was banjar qadim as per relevant revenue record. Secondly, it was not used for agricultural purposes for 27 years, before its sale. Thirdly, it was not assessed to the land revenue during all these years. In view of the law laid down by the Hon’ble Supreme Court, in the judgements cited above, the actual use of the land for agricultural purposes, its classification as agricultural land in the revenue record, as well as its assessment to the land revenue was sine qua non for bringing this land in Khasra No.672 (1 K 5 M) within the scope of `agricultural land’. The next contention raised on behalf of the appellant is that this part of the suit land in Khasra No.672 (1 K 5 M) was situated within the municipal limits of Narwana and it was ‘urban immoveable property’ as defined under Section 3(3) of the Act of 1913. Learned counsel for the appellant further submits that since this land was falling within the ambit of Section 3(3) of the Act of 1913, it was not pre-emptible in view of the provisions of Section 7 of the Act of 1913. Section 7 of the Act of 1913 reads as under:- RSA No. 223 of 1985 25 7. Exists under certain conditions in urban immoveable property.- Subject to the provisions of the section 5 a right of pre-emption shall exist in respect of urban immoveable property in any town or sub-division of a town when a custom of pre-emption is proved to have been in existence in such town or sub-division at the time of the commencement of this Act, and not otherwise. This court finds considerable force in the contention raised on behalf of the appellant. The pleadings of the parties, in this regard, are in para 7 of the written statement and replication. The appellant has taken specific averment in para 7 of his written statement, which reads as follows:- “Para 7 of the plaint is wrong and denied. Law of Pre- emption does not apply to land in dispute because it is situated within the municipal limits of Narwana.” The plaintiffs filed their replication, but in para 7 of their replication, they did not deny the above said specific averment, taken by the appellant in para 7 of his written statement. Para 7 of the replication reads as follows :- “that Para 7 of the written statement is wrong and denied. Para No.7 of the plaint is true and correct.” So far as para No.7 of the plaint is concerned, there is no averment taken by the plaintiffs that the suit land was agricultural land. The thrust of the plea taken by the plaintiffs in para No.7 of the plaint is that they have got preferential right of pre-emption. The principle of qui non negat fateur (one who does not deny, admits) is attracted in the instant case. The specific averments taken by the appellant in para 7 of his written statement, reproduced above, have RSA No. 223 of 1985 26 not been denied by the plaintiffs-respondents in the corresponding para of their replication. It is very pertinent to note here that vide interim order dated 7.5.1983, the learned trial court held that the suit land was within the municipal limits of Narwana. Paragraph Nos. 7, 8 and 9 of order dated 7.5.1983, which are relevant in this regard, are reproduced below:- 7) “The ld. counsel for the plaintiffs vehemently argued that the suit land is a agricultural land and is not within the M.C. limits of Narwana. So the court fee is not deficient. Because the court fees is according to law. 8) But I do not agree with this contention. Because according to the evidence led by the defendent/vendee, it is clear that the suit land is within the limits of M.C. Narwana. He has examined D.W.1 Krishan Lal clerk M.C.Narwana who has deposed in the court according to the land record. He has categorically stated that the suit land bearing nos. 153/12, 12, 24, 25,178/4, 5 ,6/2 and khasra No. 672 were within the M.C. limits abadi deh of Narwana. He has stated that there is also a gazette notification of these numbers, which is of date 25.5.1975. He has also proved the certificate issued by Administrator Ex.D.1/1 and site plan Ex. D.2/1. His statement is also corroborated by defendant himself. Plaintiff has not produced any evidence to rubutt the evidence of the defendant to this effect. Mere denial is not sufficient to rebut the evidence. 9. In view of the above discussion, and evidence available on the file, I am of the view that the suit land is within the limits of M.C. Narwana. So when the suit land is within the M.C.limits of Narwana the plaintiffs are to pay the advolrem court fees as per market price of the suit land. Because, according to clause B of section 2 of Haryana Amendment Act No.22 of 1974 which is in the following terms; plaintiffs are to pay advolrem court fees according to market price. Amendment is as under:- RSA No. 223 of 1985 27 “2. Amendment of section 7 of Act 7 of 1870-In section 7 of the court fees act 1870(herein after re-ferred to as the principal Act) for sub-clauses (a) and (b) of clause (v) the following sub-clauses shall be substituted namely:- (a)…….. (b) where the subject matter is house, garden, or land situated within the municipal limits of Abadi deh whether under cultivation or not according to its market value… A perusal of the aforesaid provision would reveal that it takes into its sweep three categories of properties for the payment of ad-valorem court fee; (1) house (2) garden and (3) land situated within municipal limits or abadi deh whether cultivated or not cultivated. In the resent case the land is situated within the M.C. limits. It does not matter whether it is under cultivation or not. My these views are supported by 1979 P.L.J. 204 Pardeep Kumar and another Vs. Biru alias Bir Bhan and others (case law cited by the defence counsel). However, the present market price is not proved, which is prevailing at this time. But the sale price is to be seen at this time. When the suit land was within the M.C. limits and suit land was sold for Rs. 49,000/- then the plaintiffs were to pay the court fees as per price mentioned in the sale deed. But the plaintiffs have not paid the advolrem court fees. So the value of the suit for the purpose of jurisdiction & court fees is also the same.” The order dated 7.5.1983, reproduced above, was not challenged by the plaintiffs-respondents. When the appellant appeared as DW-4 and specifically deposed that the land in Khasra No. 672 was within the municipal limits of Narwana, plaintiffs did not cross-examine him in this regard. It would obviously mean that the plaintiffs-respondents had admitted that this land in Khasra No.672 (1 K 5 M) was well within the municipal limits of Narwana. RSA No. 223 of 1985 28 The cumulative effect of the pleadings, documentary as well as oral evidence, supported by the above said judicial order dated 7.5.1983, would bring this court to the irresistible conclusion that the land in Khasra No.672 (1 K 5 M) was well within the municipal limits of Narwana. Since this land was not agricultural land, it would fall within the definition of ‘urban immoveable property’, having been situated within the municipal limits, as defined under Section 3(3) of the Act of 1913. Thus, the land in Khasra No.672 (1K 5 M) was not pre-emptible in view of the provisions of Section 7 of the Act of 1913. The following observations made by the Lahore High Court in the case of Mandir Gita Bhawan Siri Kurukshetra Vs. Sadhu Ram AIR 1939 (Lahore)-554 (supra), are apposite :- “I shall now deal with the claim for pre-emption on the basis that the land in dispute was agricultural land. In para 1 of the plaint it was merely stated that the land in dispute was the property of the plaintiff and defendant 2 and this is what was admitted by defendant 1. It is true that the land was described as arazi zarai but this was a general description which was not used with reference to the provisions of the Punjab Pre-emption Act. The expression “agricultural land’ has a technical meaning in that Act- the definition of the expression being practically the same as in the Punjab Alienation of Land Act. I do not think the reply of defendant 1 to para. 1 of the plaint be reasonably taken to be tantamount to an admission that the land in dispute was ‘agricultural land’ in the same sense of the definition of that expression as given in the Punjab Pre-emption Act. In reply to the paragraph in the RSA No. 223 of 1985 29 plaint in which the plaintiff claimed a right of pre-emption, defendant 1 denied the right and joined issue on the point. This shows clearly that defendant 1 did not intend to admit that the plaintiff had any right of pre-emption with respect to the property in suit on the ground of its being ‘agricultural land.” Apart from the above so-called admission of defendant 1 there is no other evidence worth the name on the record to prove that the property in dispute is agricultural land. The entries in the revenue records show that for nearly 20 years the land had been lying uncultivated except in the year 1925-26 when there was a garden on a small portion of it. In view of these entries in the revenue records, the oral evidence on the point cannot be believed. I am therefore of opinion that the land in dispute cannot be held to be agricultural land within the meaning of the Punjab Pre-emption Act; for according to that definition the land must have been used for agricultural purposes or purposes subservient to agriculture. When the land was not so used for a period of nearly 20 years, it cannot be held to fall within the said definition.” It is also useful to refer to the law laid down by the Division Bench of the Lahore High Court in Lala Khazanchi Shah. Vs. Haji Niaz Ali AIR 1940 (Lahore)-438-DB (supra), on the definition of ‘land’, as given in Section 2(3) of the Act of 1900 and the same is as under :- “As regards the land in Rangpura, it was omitted by inadvertence from the judgment of the learned Judge in Single Bench. It is clear that in 1913-14 the land is described as banjar qadim and the learned counsel for the appellant contends that the onus of the issue as to whether the land in dispute fell within the definition of “land” as given in S.2(3), RSA No. 223 of 1985 30 Land Alienation Act, was placed on the judgment debtor, and there was no evidence that this land had been occupied or let for agricultural purposes or purposes subservient to agriculture or pasture. The land itself is situate within municipal limits. There are no actual houses built on the land, but it is situate close to the abadi. It has been banjar for nearly 40 years and there are building sites near the land in dispute . The land is not assessed to land revenue. He therefore contended that on the same lines as the learned Judge in Single Bench held that the Pur Hiran land was non- agricultural, this land should also be held not to be agricultural land. Qua this portion of the land, in reply the learned counsel for the judgment debtor could only urge that the mere fact that the land was not assessed for land revenue or that it was situate close to the abadi or that it had remained banjar qadim for a large number of years would not show that the land had ceased to be agricultural land within the meaning of the definition. His contention was that the description of the land as banjar qadim showed that the land was culturable and that if it had not been culturable, it would have been described in the revenue papers as ghair mumkin. His contention then was that if land is culturable then the presumption should be that it is occupied or let for purposes of agriculture or for purposes subservient to agriculture or pasture. I do not agree with this contention. It appears to me that the question is not to be determined on description in the revenue papers though these are no doubt valuable as throwing light on how much the land has actually been used for a certain number of years. All the facts and circumstances must be taken together in determining whether land is or is not agricultural land within the meaning of the definition. The mere fact that a judgment debtor as a last and desperate resort proceeds to cultivate a few patches of land which has never been used for agriculture would not make the land agricultural land; nor would the fact that the land had lain fallow for one or two or more years necessarily make the land RSA No. 223 of 1985 31 cease to be agricultural land. In considering in this particular case the circumstances, it appears to me that the very long lapse of time from 1913-14 onwards during which the land has not been cultivated, and the fact that the land is situate near the abadi within municipal limits, and the fact that adjacent land is either a part of the abadi or is being used for building sites, would tend to show that the land had ceased to be agricultural land unless the judgment-debtor rebutted the presumption arising from all these circumstances by showing some circumstance which would tend to rebut the inference deducible from these circumstances. It must not be forgotten that the onus is on the judgment-debtor and in the absence of any circumstances tending to rebut the inference deducible from these circumstances I would hold that it is not proved that this land, 13 marlas in village Rangpura, is agricultural land. In view of the law laid down by the Lahore High Court, in the judgments noted above, it becomes clear that the land in Khasra No.672 (1 K 5 M), was covered under the definition of ‘urban immoveable property’. Since the plaintiffs-respondents have neither pleaded nor proved any custom of pre-emption in the town of Narwana, as envisaged in Section 7 of the Act of 1913, this part of the suit land was not pre-emptible under Section 7 of the Act of 1913. The contention raised by Smt. Amit Jhanji, learned counsel for the respondents, referring to Section 5 of the Act of 1913, seems to be attractive at the first sight but when the same is considered going slightly deeper in the context of the present case, it is found without any force and bereft of any merits. Section 5 of the Act of 1913 reads as under:- [5.No right of pre-emption in certain cases.- No right of pre-emption shall exist in respect of- (a) the sale of or foreclosure of a right to redeem- RSA No. 223 of 1985 32 (i) a shop, serai or katra; (ii) a dharamsala, mosque or other similar building; or (b) the sale of agricultural land being waste land reclaimed by the vendee. Explanantion.- For the purposes of this section the expression “waste land’ means land recorded as banjar of any kind in revenue records and such ghair mumkin lands as are reclaimable]. In all fairness to Sh. Amit Jhanji, learned counsel for the respondents, his contention is to be noted only to be rejected. The simple reason is that it has never been the case of the appellant that he had ever reclaimed this land, in Khasra No.672 (1 K 5 M), as vendee in view of the provisions of Section 5(b) of the Act of 1913. The appellant never claimed at any point of time, during instant litigation, that he had improved his status by reclaiming this part of the suit land and because of that reason, the land was no more pre-emptible. The judgments in Karnail Singh and others Vs. Jabir Singh and others, Bachan Singh and others Vs. Ramel Kaur and Salamat Rai Vs. Kanshi Ram (supra) relied upon by the learned counsel for the respondents, are not applicable in the present case, being distinguishable on facts. In so far as the judgments of the Hon’ble Supreme Court on Section 100 of the CPC, cited by the learned counsel for the respondents are concerned, there is no dispute about the law laid down by the Hon’ble Supreme Court in this regard. However, in the facts and circumstances of the present case, the findings recorded by both the learned courts below are perverse in as much as the relevant statutory provisions have not even been discussed. The Hon’ble Supreme Court, in Hero Vinoth (minor) Vs. Seshammal (supra), held that non interference by the High Court with concurrent findings of the Courts below is not an absolute rule. There are RSA No. 223 of 1985 33 well recognized exceptions. Following observations made by the Hon’ble Supreme Court in para Nos. 16 and 25 are relevant :- 16 “It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 CPC. If a document creating an easement by grant is construed as an ‘easement of necessity’ thereby materially affecting the decision in the case, certainly it gives rise to a substantial question of law. 25. The principles relating to Section 100 CPC, relevant for this case, may be summerised thus”- (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to RSA No. 223 of 1985 34 which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the courts below have ignored material evidence or acted on no evidence(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously: or (iii) the courts have wrongly cast the burden of proof. When we refer to ‘decision based on no evidence’, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” The learned courts below, as noticed above, have not at all adverted to the relevant statutory provisions, reproduced above. Further, the learned courts below have also ignored material, cogent and convincing RSA No. 223 of 1985 35 evidence available on the record of the present case, in the form of numerous revenue documents, referred to above. Having ignored the material evidence, the learned courts below have drawn wrong inference from proved facts by applying the law erroneously, while recording the perverse findings, which are not sustainable in law. Sh. Amit Jhanji, learned counsel for the respondents, next contended that the suit land, being within the municipal limits will not ipso facto make it the ‘urban immoveable property’, unless it is proved as ‘non agricultural land.’ This contention of the learned counsel has merit. However, as it has already been held in the earlier part of the judgment that this land in Khasra No.672 (1 K 5 M) was not agricultural land, the contention of learned counsel for the respondents, pales into insignificance. In so far as the application under Order 41 Rule 27 of C.P.C. bearing CM.No.302-C of 1985 is concerned, the same is disposed of with the observations that this court do not require any additional evidence. Sufficient evidence has already been brought on record, as noticed above, to show that the land in Khasra No.672 (1 K 5 M) was urban immoveable property having been situated within the municipal limits of Narwana. Besides, this piece of land was not agricultural land and the same was not pre-emptible under Section 4 of the Act of 1913. In the light of the observations made above, the three substantial questions of law noted above, are hereby answered in the affirmative. It is held that the land in Khasra No.672 (1 K 5 M), sold vide sale deed dated 26.5.1980, out of 6 kanals 6 marlas comprising khasra No. 672, was `urban immoveable property’, in view of the provisions of Section 3(3) of the Act of 1913. It is further held that this piece of land was not pre- RSA No. 223 of 1985 36 emptible in view of provisions of Section 7 of the Act of 1913, because neither any custom was pleaded nor proved by the plaintiffs-respondents, as envisaged under Section 7 of the Act of 1913. In this view of the clear legal position, which emerges from the legislative intention and ratio of the judgements of aforementioned cases, the conclusions reached by the learned courts below, therefore, cannot be endorsed and the impugned decrees passed in favour of the respondents cannot be upheld. Following the principles of verba debent intelligi cum effectu (words ought to be understood with effect) and lex est judicum tutissimus ductor (the law is the safest guide for judges), it is held that the land in Khasra No.672 (1 K 5 M) was not `agricultural land’ on 26.5.1980 when it was sold and because of this reason, this piece of land was not pre-emptible under Section 4 of the Act of 1913. Since the learned courts below have misread the documentary as well as oral evidence available on the record of the case, besides altogether ignoring the provisions of Sections 3(1), 3(3), 4, 5 and 7 of the Act of 1913, Section 2(3) of the Act of1900 and also Rule 2(2)(a) of the Rules of 1929, the impugned judgments and decrees are not sustainable in law and the same are liable to be set aside. Keeping in view the facts and circumstances of the case noted above, coupled with the reasons aforementioned, the impugned judgments and decrees are hereby set aside, however, only qua the land in Khasra No.672 (1 K 5 M). Suit of the plaintiffs-respondents is dismissed qua this part of the suit land situated in Khasra No.672 (1 K 5 M). Accordingly, the appeal is allowed. Costs made easy. December 6, 2011 (Rameshwar Singh Malik) Amit JUDGE RSA No. 223 of 1985 37 . "