JUDGMENT

Din Mohammad, J. - This is a Letters Patent appeal from the judgment of Monroe, J. The sole question for determination in this case is, whether an owner of a plot of land which was once agricultural land situated within the municipal limits of a town and was afterwards built upon, can still be deemed to be an "owner of the estate" within the meaning of Section 15 (c), thirdly, of the Pre-emption Act, so as to be entitled to pre-empt the sale of agricultural land situated within the same limits. The trial Judge found that the plaintiff could not preempt in these circumstances, and both the District Judge and the learned Judge of this Court have concurred in this finding. The answer to this question is not so easy as it appears to be at first sight. It is contended on behalf of the appellant that by merely building upon a piece of land which used to be agricultural land before, but which, in spite of the building, is still assessed to land revenue and is shown in the revenue papers as bearing a separate khasra number, its owner does not cease to be an owner of the estate, even though the land itself ceases to be agricultural land and assumes the character of "urban immoveable property." The respondent on the other hand maintains that the term owner of the estate" as used in Section 15, Pre-emption Act imports ownership of agricultural land only and as soon as an area of land, which was admittedly agricultural before,,, is converted into a building site, it at once ceases to be a part of the estate and its owner, therefore, is deprived of all those privileges which he could otherwise enjoy under the law. On behalf of the appellant, reliance has been placed on Salamat Rai v. Kanshi Ram 1918 Lah 334, Chanan Din v. Chanan Din 1933 Lah 213 and Faqir Mahomed v. Kala Khan 1933 Pesh 33.

2. In Salamat Rai v. Kanshi Ram 1918 Lah 334, the land in suit was situated within municipal limits but still remained a part of the estate known as Premgarh village. It was found that the town itself had not extended so far. It was held by a single Judge of the Chief Court that the locality in question still remained a part of the village and did not become a part of the town. It was on this basis that it was further held that the plaintiff who had purchased a small plot of land assessed to revenue must be (regarded as an "owner of the estate" within the meaning of the Pre-emption Act. This authority, therefore, is clearly distinguishable inasmuch as in the present case it is not denied that the land on the basis of which pre-emption is claimed is a part of the town. In Chanan Din v. Chanan Din 1933 Lah 213, the land on the basis of which pre-emption was resisted was situated within the area of Mozang. The plot though described as Qabil tamir '(suitable for building) had not yet been built upon. It was also assessed to land revenue. Tapp, J., held that:

The determining factor in such cases was whether the area in question was or was not assessed to land revenue. Its extent, situation and the purpose for which it was brought or to which it may be devoted were absolutely immaterial.

3. With all respect, we consider that this is too general a proposition of law to enunciate, as in all such cases it will be necessary to determine where the land on the basis of which the right of pre-emption is claimed or resisted, is situated and to which purpose it has been devoted. Even apart from this, as the plot of land dealt with in that case had not been built upon and had, consequently, not assumed the character of ' urban immoveable property', this authority will be of no use to us here.

4. In Faqir Mahomed v. Kala Khan 1933 Pesh 33 the land purchased was admittedly situated in a village and so was the land on the basis of which the suit for pre-emption was resisted. That precedent also does not help the appellant. The respondent, on the other hand, has grounded his contention ton the following authorities: Sher Ali v. Kalandar Khan (1923) 73 IC 200, Mahomed Al