AMIN-UD-DIN KHAN, J., --- Through this civil revision, the petitioner-defendant has challenged the judgment and decree dated 03.02.2000 passed by the learned Addl. District Judge, Chishtian, whereby the appeal filed by the plaintiff-respondent was accepted and the judgment & decree dated 09.06.1996 passed by the learned Civil Judge 1st Class, Chishtian, dismissing the suit filed by the plaintiff-respondent, were set aside.
2. Precisely, the facts as leading to this civil revision are that petitioner-defendant purchased the suit property through oral Mutation No. 456 sanctioned on 22.12.1973 from Mst. Hamidan Bibi.
Daughter of Mehar-ud-Din. The respondent-plaintiff filed a suit to pre-empt the sale on 21.12 1974 on the basis that the land has been sold by his sister, therefore, he being 'Yakjaddi' and joint owner of Khata, has superior right of pre-emption over the suit property.
The suit was contested by the defendant-petitioner by filing written statement. The Trial Court framed two issues and invited the parties to produce their respective evidence. Both the parties adduced their oral as well as documentary evidence in support of their contentions. In the first round of litigation, suit was decreed on 10.06.1975 and the appeal was dismissed on 24.07.1977 and then in second appeal, case was remanded back on 05.12.1995 allowing the petitioner-defendant to amend the written statement and after remand on the objection of amendment of written statement, issue No. 3 was framed which is as follows:--- "Whether the suit land and its sale are exempted from suit for pre-emption as alleged in the amended written statement? OPD"
3. As learned counsel for the parties have advanced arguments in original as well as in the alternate pleas. Therefore, the questions determinable by this Court are:- Whether whole of the property sought to be pre-empted is exempt from the operation of Pre- emption Act on the basis on the basis of Notification No. 74, dated 15.06.1944 issued under Section 8 of the Punjab Pre-emption Act (1 of 1913)?
(ii) Whether the property of both the Khatas was originally the State land under the operation of Colonization of Government Lands (Punjab) Act, 1912?
4. Learned counsel for the petitioner states that the Trial Court has held that property fall within the colony area and is exempted from the operation of law of Preemption and Notification No. 74, dated 15.06.1944 (Ex.D-18) is available, therefore, suit was rightly dismissed by the Trial Court.
Learned counsel has referred Ex.D-1, Ex.D-9 and Ex.D-10 to substantiate his contention and states that originally it is proved through Jamabandi for the year 192627 (Ex.D-9), as whole of the suit land falling in. Khatas Nos. 23 and 112 according to Jamabandi for the year 1970-71, was State land owned by 'Sarkar Daulat Madar' State of Bahawalpur, therefore, it is proved that originally this land was a State land and Patta-Malkiat, which is available on the file as Ex.D-30, the conditions contained in this Patta-Malkiat clearly show that the Colonization of Government Lands (Punjab) Act, 1912 will remain applicable. In this context, learned counsel relied upon "1986 SCMR 431 (Mst. Nawaz Fatima v. Muhammad Sarwar and another) PLD 1977 Lahore 1243 (Abdul Rahman v. Wahid Bakhsh and 9 others) 1994 CLC 52 (Muhammad Khan v. Muhammad Din) and PLD 1969 Supreme Court 197 (Mst. Rehmat Bibi v. Nathe Khan and others)".
5. On the other hand, learned counsel for the respondent-plaintiff states that as no appeal or cross-objections were filed with regard to the findings recorded by the Trial Court on issues Nos. 1 and 2, therefore, first Appellate Court rightly decided issue No. 3 in favour of respondent-plaintiff on the basis of record available on the file. Further states that the plaintiff proved that both the Khatas were not originally owned by the Government and were not under the operation of Colonization of Government Lands (Punjab) Act, 1912, if this Court is of the opinion that the Notification giving exemption to the colony land is applicable in this case, then only the land falling in the Khata which was originally owned by the State of Bahawalpur will be exempted and it is not applicable to any other Khata, learned counsel states that only Khata No. 23 was owned by the Government and Khata No. 112 was not in the ownership of State of Bahawalpur.
6. I have heard the learned counsel for the parties at full length, perused the record carefully with their able assistance and also gone through the law cited by them.
7. First of all, I take the question whether the land of both Khatas was originally the State land. The contention of learned counsel for the petitioner is supported by the record. It is evident from the Jamabandi for the year 1926-27 (Ex.D-9) that land measuring 751-kanals was the ownership of State of Bahawalpur and land mentioned therein fall within Khata Nos. 23 and 112 in the Jamabandi for the year 197172. As such, the contention of learned counsel for the respondent -plaintiff is against the record, so the same is repelled being incorrect. It is also proved on the record that whole of the suit land was originally the State land and was transferred under the Colonization of Government Lands (Punjab) Act, 1912.
8. Now the question arises whether after grant of Patta-Malkiat, exemption given to the colony land under the Notification issued by the State of Bahawalpur, copy of which is available as Ex.D-18, remains intact or ceases to have effect. In this regard, clear light can be taken from the pronouncement of august Supreme Court of Pakistan reported as "PLD 1969 Supreme Court 197 (Mst. Rehmat Bibi v. Nathe Khan and others)", wherein the matter in issue was the same and while approving the view taken by this Court the august Supreme Court has held that the exemption will remain attached to the colony area, therefore, for the purpose of exemption from law of Pre- emption this land even after the grant of Patta-Malkiat remains subject of the Colonization of Government Lands (Punjab) Act, 1912, and further that even grant of Patta-Malkiat the land is not excluded from the colony area. In this view of the matter, I have no any ambiguity in my mind that the suit land is free from the application of operation of law of Pre-emption.
9. The other point raised by learned counsel for the respondent-plaintiff is that at the time of filing of suit, Notification No. 74, dated 15.06.1944 was not in the field, therefore, it is not applicable to this case. I am afraid that the contention of learned counsel is wrong, as the plaintiff of a suit for pre- emption has to show his superior right of preemption at three stages i.e. At the time of impugned sale, filing of suit and decree. Admittedly at the time of impugned sale, that Notification dated 15.06.1944 was applicable and was in field, so the contention of learned counsel for the respondent-plaintiff is not sustainable. Even otherwise, I am astonished to see that even the Trial Court has not framed the issue with regard to superior right of pre-emption.
Though I am clear in my mind that now it is settled law that if any issue has not been framed, as the parties to suit are fully aware of their contentions made in their pleadings and they produce their evidence with regard to that contentions, the framing of issues remains a formality. The same is the position of this case, therefore, non-framing of issue is not prejudicial to the rights of the parties.
10. In the light of what has been discussed above, this civil revision is allowed and while reversing the findings recorded by the first Appellate Court on issue No. 3, impugned judgment and decree dated 03.02.2000 are set aside. Resultantly, the suit filed by the respondent-plaintiff shall stand dismissed with no order as to costs.
Civil .