' TASSADUQ HUSSAIN JILLANI, J.---This Civil Revision is directed against the judgment and decree dated 13-12-1995 passed by the learned Additional District Judge Chunian vide which he set aside the judgment and decree of the learned Civil Judge Chunian and decreed the respondents' suit for pre-emption qua the suit land.
2. Facts in brief are that the respondents-plaintiffs filed a suit for preemption qua the suit land claiming superior right of pre-emption on the basis of being collateral of the vendor and owners in the estate. In terms of the divergent pleas of the parties, following issues were framed:- "1 . Whether the plaintiffs have superior right of pre-emption? OPP
2. Whether Rs,24,600 were actually paid and fixed in good faith as price of the suit land? OPD
3. If issue No,2 is proved in affirmative, what is the correct market price? OP Parties
4. Whether values of the suit for purpose of court-fee and jurisdiction has been incorrectly fixed?
OPD
5. If issue No,4 is in affirmative, what is the correct valuation? OP Parties
6. Whether the impugned transaction of transfer is not pre-emptable? OPD
7. Whether the suit land is situated in a colony chak and is as such immune from the incidence of pre-, emption? OPD
8. Whether complete description of the suit land has not been detailed in the plaint, if so, what is its , effect? OPD
9. Whether the suit is time-barred? OPD
10. Whether the plaintiffs are estopped to bring the suit? OPD
11. Whether the defendants are entitled to special costs, if so, to what extent? OPD
12. Relief."
3. Learned trial Court dismissed the suit on the basis of its finding on issue No,7 and held that the suit hand is situated in colony chak which is immune from the purview of the Punjab Pre-emption Act. The afore-referred judgment and decree has been set aside by the learned appellate Court vide the impugned judgment on the ground that the suit land had ceased to be a colony chak and, therefore, was amenable to the Punjab Pre-emption Act. Learned appellate Court also endorsed the judgment and decree dated 23-5-1985 passed by the learned Civil Judge Chunian (Mr. Tariq Iftikhar Kamand) in the earlier round of litigation vide which the suit was decreed but in appeal the said judgment and decree was set aside and the case was remanded for trial afresh.
4. In support of this revision petition, learned counsel for the petitioner's argued his case only with regard to issue No,7, framed by the learned trial Court, and made following submissions :-
(i) That the learned trial Court has not considered material evidence on record, namely, Exh.D.7 (Misl Haqiat), Exh.D.8 (Wajbul Arz), Exh.D.9 (Jama Bandi for year 1905-1906) and judgment of Mr. Shafiur Rehman, Additional District Judge (who was subsequently elevated to the Honourable Supreme Court of Pakistan) who dealt with the pre-, emption matter with regard to the same chak.
The afore-referred pieces of documentary evidence, it was contended, clearly indicate that Chak No,5 was a colony chak and was not amenable to pre-emption;
(ii) That the land in the afore-referred chak was granted to the petitioners under the Government Tenants (Punjab) Act, 1893 and in terms of Notification No, 771, dated .6-12-1910, (Exh.D.l) issued under section 7(2) of the Punjab Preemption Act, 1905, the land of the said chak could not have been preempted. This Act was substituted by the Colonization of Government' Lands (Punjab) Act, 1912. Under section 4 of the said Act clearly spells out that the Colonization of Government Lands (Punjab) Act, 1912 shall apply to all the lands which were subject to the Government Tenants (Punjab) Act, 1893;
(iii) That vide Notification No,l96-B, dated 28-2-1944 the right of pre-emption was specifically excluded in respect of local areas to which Colonization of Government Lands (Punjab) Act, 1912 was applicable. This notification was withdrawn vide Notification No,662-73/447- LR-III, dated 2-3- 1973 which shows that till the afore-referred date the earlier notification, dated 28-2-1944 held the field. The suit was instituted on 31-10-1972 wheti the earlier notification was still operative.
5. Learned counsel for the respondents-plaintiffs defended the impugned judgment and decree and submitted that the suit land was not part of the Colonization of Government Lands (Punjab)
Act, 1912 and, therefore, the learned appellate Court has rightly decreed the suit; that in the earlier round of litigation the Civil Judge Chunian (Mr. Tariq Iftikhar Kamand) had also decreed the suit and the learned trial Court has reiterated the said judgment and decree; that there is no evidence to indicate that the suit land was ever owned by the Provincial Government hence the Pre-emption Act was fully applicable.
6. I have heard learned counsel for the parties and have also given anxious consideration to the submissions made.
7. Both the learned counsel confined their submissions only on issue No,7 and did not press any other issue at all. Even otherwise, this is the most crucial point and goes to the root of the whole case. In terms of the description of the suit property contained in the body of the plaint ldmittediy the suit land is part of the chak No,5 known as Risalpura Nur. I have gone through the documents which were roduced before the learned trial Court in evidence i.e, Exh.D.7 (Misl Haqiat), Exh.D.8 (Wajibul Arz) and Exh.D.9 (Jama Bandi for year 1905-1906). These documents indicate that the afore-referred chak consisted of State land. It was precisely on account of the afore-referred entries in the revenue record that Mr. Shafiur Rehman, Additional District Judge (who was subsequently elevated to the Honourable Supreme Court of Pakistan) decided a pre-emption case with regard to the same chak and came to the conclusion that "in the year 1905, the Abadkars were granted occupancy rights and in 1911-12, 52 grantees were given full proprietary rights. Initially the name of the village was given as Kiranwala and in 1913 the name of the village was changed to Risalpura Nur."
8. The afore-referred documents of the revenue record the village where the suit land is situated, was earlier called as Kiranwala and subsequently its name was changed as Risalpura Nur and that it is a colony chak. Admittedly by virtue of Notification No, 196-B, dated 28-2-1944 the Punjab Pre- emption Act was not applicable to the colony land even if subsequently proprietary rights were granted. This notification held the filed till 1-3-1973 when by virtue of Notification No,662- 73/447- LR-III the earlier Notification (196-B) was withdrawn. The suit was instituted on 31-10-1972. Hence the earlier notification, vide which the operation of the Pre-emption Act was excluded from the colony areas still held the field at the time of institution of the instant suit. The suit was, therefore, not maintainable and had rightly been dismissed by the learned trial Court vide judgment, dated 19-5- 1992. This is .In line with law laid down by this Court in Khushi Muhammad and others v. Bashir Ahmad and others 1994 M LD 791 wherein at page 442, it was held as under:- "8. This being so, by virtue of section 4 of the Colonization of Government Lands (Punjab) Act, 1912, it automatically stood applied to the suit land because, as per contents of Jamabandi of 1908-9 (copy Exh.DG), it was Government-owned land. It appears that subsequently Dakhilkari rights of this land were purchased by some non-Muslims and in the Jamabandi of 1935-36 onward they figured in the ownership column as owners instead of the Government but, as held by a Division Bench of the High Court in Nathe Khan v. Mst. Rehmat Bibi and others PLD 1961 WP . Baghdad^ Jadid 96 which authority was approved by the Supreme Court of Pakistan in Mst. Rehmat Bibi v. Nathe Khan and others PLD .1969 SC 197 and still holds the field, the subsequent , acquisition of proprietary rights did not exclude the application of the Colonization of Government Lands (Punjab) Act, 1912 and that of the exemption Notification No,l96-B, dated 28-2-1944 issued under section 8(2) of the Punjab Preemption Act, 1913, unless the application of 1912 'Act was specifically excluded under section 5 thereof which exclusion was not proved from the record. In other words at the time of sale of the suit land, the Colonization of Government Lands (Punjab) Act, 1912 was applicable thereto and by virtue of Notification No,l96-B, dated 28-2-1964 its sale was exempt from pre-emption under the Punjab Pre-emption Act, 1913. In my opinion, the authority known as Sher Muhammad v.
Abdul Khaliq and others PLD 1961 Baghdadul Jadid 79 did not apply to the facts of this case and the plaintiffs- respondents could not take benefit thereof, nor they could avail of the requisite authority of the Supreme Court reported as Noor Muhammad v. Muhammad Tufail and others 1991 SCM R 512 in which the distinction was drawn between the aforesaid two authorities of the Supreme Court."
9. For what has been discussed above, the impugned judgment and decree, dated 13-12-1995 passed by the learned Additional District Judge Chunian is against the weight of evidence and the law declared, the same is, therefore, set aside, the judgment and decree of the learned Civil Judge Chunian, dated 19-5-1992 is restored and the suit is dismissed throughout with no order as to costs.