' NASIR-UL-MULK, J.---Though this single judgment, Civil Appeals Nos.285, 286 and 318 of 2001 and 1679 of 2002, 774 of 2004 and 2115 of 2006, are disposed of, as they involve same question of law, relating to exemption from pre-emption of sale of land under the Notification dated 28-2-1944, issued by the Government of Punjab and Notification dated 12-6-1944 issued by the then State of Bahawalpur, under section 8(2) of the Punjab Pre-emption Act, 1913. The two Notifications read:-- "Notification No, 196-B, dated 28th February 1944. ---No right of pre-emption shall exist in:-
(a) Any local area to which the Colonization of Government Lands (Punjab) Act, 1912 has . Been or may hereafter be made applicable; or
(b) Any area on the old Sinai and Snag-Para canal which was originally granted by Government under a lease containing a stipulation that a right of pre-emption in such area shall not be acquired or acquirable."
' The translation of the Bahawalpur Government Notification No,74 dated 12th June, 1944, which was in Urdu, is as follows:-- "Under subsection (2) of section 8 of the Punjab Pre-emption Act which is in force in the State, the Government of Bahawalpur passes an order that no suit for pre-emption would lie with regard to lands included in a colony (colony area) to which Colonization of Government Lands (Punjab) Act, 1912, has been applied or may hereafter be applied."
2. The said Notifications, however, were rescinded on 2-3-1973 vide Notification No,622-73/447-LR- 111.
3. Leave to appeal was first granted in Civil Petition No,143 of 2001, out of which Civil Appeal No,285 of 2001 arises, the operative part of which formulates the following points of law:-- "It is noteworthy that the learned Judge in Chambers of the Lahore High Court interfered in the concurrent findings recorded by the Trial and Appellate Courts mainly for the reason that the suit land is not subject to pre-emption, therefore, findings on issue No,4 which was framed in view of the objection of the respondents in the written statement were reversed.
' Learned counsel for petitioners contended that the subject matter of the proceedings was not exempted from pre-emption because the property was privately owned by the vendor and Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred to the as the "Act") was not applicable on it nor any notification under section 8(2) of the Punjab Pre-emption Act, 1913 (I of 1913) was issued exempting the property from pre-emption. He also contended that learned High Court had not correctly applied the principle of law laid down by this Court in the case of Noor Muhammad through his Legal Heirs v. Muhammad Tufail and others (1991 SCMR 512) nor the judgment of this Court in the case of BABU AND ANOTHER v. JALALUDDIN AND ANOTHER (PLD 1992 SC 102) was applied. He further contended that entries in Wajib-ul-Arz prepared during the process of settlement relied upon by learned Judge in Chambers of the High Court would not be sufficient to decide the status of the land whether it is privately owned or it vests in the Government. According to him merely for the reason that the property of Chak No, 4 sometimes back was the property of the Government which was subsequently transferred to the vendors who had sold it to the vendees could not constitute a ground to exempt the land from pre-emption.
' We have heard the learned counsel for the parties at length and have gone through the impugned judgment carefully. It may be noted that this Court has examined section 4 of the Act in the case of Sher Muhammad and others v. Abdul Khaliq and others (1968 SCMR 320) held as follows:- "All that was urged was that the area having been included in the Colony area, would also become amenable to the notification issued under the Act of 1912. This is not an argument, which we can accept. By the letter of the 7th November, 1934 proprietary Lands may also have been given into the control of the Colonization Officer, as an administrative measure. But the fact alone would not make them subject to the provisions of the Colonization of Lands Act, 1912. For that purpose, a notification had to issue under the Act and the notification must be confined, in the face of section 4 of the Act, to State-owned lands only. The letter cannot be treated as a notification. Consequently it must be held that there was no notification under the Act, applying to these lands and these being privately owned lands, could not in fact be the subject of such a notification. The mere circumstances that they were located in an area known as the Colony area, would not bring them within the purview of the notification, exempting certain lands from pre- emption."
' Later on in the case of Mst. Rehmat Bibi v. Nathe Khan and others (PLD 1969 SC 197) this Court examined the implication of section 8(2) of the Punjab Pre-emption Act; 1913 along with Notification No,74 dated 12-6-1944 and concluded that although no notification under section 4 of Colonization of Government Lands (Punjab) Act, 1912 is proved to have been issued yet jamabandi proving that land in pre-emption suit was Government land and situate in colony area, therefore, it was not pre-emptible. Similarly in the case of Noor Muhammad through his Legal Heirs v.
Muhammad Tufail and others (1991 SCMR 512) to resolve the controversy the following principle was laid down by this Court: "Since the land in dispute in these appeals, admittedly, was privately owned to which Colonization of Government Lands Act, 1912 - did not apply, therefore, exemption notification under section 8(2) of the Pre-emption Act, 1913 had no application. These appeals are fully covered by the law declared in the earlier decision in Sher Muhammad's case. (1968 SCMR 320) and have therefore, to be dismissed. It is so ordered. However, as the question raised related to interpretation of statutory provisions and notifications the parties are left to bear their own costs throughout."
' Later on in the case of Babu and others v. Jalaluddin and others (PLD 1992 SC 102) this Court observed that if the land in dispute at the time of sale in favor of the petitioner was privately owned and was not within any form of ownership of the Government, therefore, it will not be exempted from the law of pre-emption. Thus leave to appeal was refused.
' In view of above principles of law laid down in the judgments noted hereinabove we are inclined to grant leave inter alia to examine the following points:
(i) As to whether the subject matter of the proceedings was privately owned by the vendor, if so whether it would not be preempt able merely for the reason that it is not situated in the area where the Act is applicable?
(ii) As to whether learned High Court was justified in interfering in concurrent findings of fact recorded by Trial and Appellate courts on the issue, whether the land is not subject to preemption in view of the material available on record?
(iii) As to whether the principles laid down in the judgments reported in 1968 SCMR 320, 1991 SCMR 512 and PLD 1992 SC 102 have not been correctly applied in the impugned judgment?"
4. The facts of Civil Appeal No,285 of 2001 are that Ali Muhammad sold a piece of land in Chak No, 4, village Kambohkey, Tehsil Chunian, District Qasur, measuring 32 Kanals and 9 Marlas, to Muhammad Din and his brothers, through mutation attested on 30-11-1970. To pre-empt the sale, Wali Muhammad, brother of the vendor and co-sharer in the Khata, filed a suit on 22-10-1971. The suit was resisted by the vendee, issues framed and Issue No,4, which is relevant for the purpose, reads "whether the suit is not subject to preemption as it is situated in colony Chak". Without much discussion on the Issue, the same was decided against the defendant/vendee, the Court holding that he had failed to prove that the same was exempt from preemption. Having decided the other issues in favor of the plaintiff, his suit was decreed on 22-3-1978. The first appeal of the vendee was dismissed on 18-12-1978. He succeeded in his second appeal before the Lahore High Court, which vide judgment dated 13-11-2000 allowed the appeal and dismissed the suit of the plaintiff, holding that though the land was privately owned at the time of the sale since it fell within the local area as mentioned in the Notification dated 28-2-1944, the same was exempt from pre-emption.
5. The facts of Civil Appeal No,286 of 2001 are materially similar to that of Civil Appeal No,285 of 2001. Here too the land was situated in Chak No,4, village Kambohkey, Tehsil Chunian, District Qasur.
It was sold by one, Sakhi Muhammad, though registered sale-deed dated 27-9-1971 to Muhammad Abdullah, against whom suit for pre-emption was filed by the same plaintiff, Wali Muhammad on 2 3-9-1972. The same question of exemption, under the aforementioned \ notification, was raised.
The suit was decreed by the trial Cow on 23-7-1978. The vendee's first appeal was dismissed on 18- 12-1978 and his second appeal before the High Court succeeded on 13-11-2000 and consequently the pre-emption suit of the plaintiff was dismissed, on the ground of exemption under the Notification dated 28-2-1944.
6. In Civil Appeal No,318 of 2001, a suit for pre-emption was brought by one Mst. Ghulam Fatima, on 1-9-1973, in the Court of Civil Judge, Sargodha, against the sale of 334 Canals of land to Ghaus Muhammad and others, through registered sale deed dated 28-8-1972. Apart from other pleas, the vendee took the shelter of the Notification of 28-2-1944, pleading that the sale was exempt as the area sold was subject to the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter referred as to the Colonization Act). This issue was decided against the defendants, and the other issues having been found in favor of the plaintiffs, the Trial Court decreed the suit on 18-3-1984. The First Regular Appeal filed by the defendants was allowed by the District Judge on 12-5-1984, holding that the sale was exempted from pre-emption under the said Notification. The High Court in Second Regular Appeal upheld the judgment of the District Judge, with the result that the suit of the plaintiff stood dismissed. Mst. Ghulam Fatima having passed away, her legal heirs had filed this appeal by leave of the Court.
7. Civil Appeal No,1679 of 2002 has been filed by one Ashraf, who had purchased 12, Canals and 19 Marla's of land situated in Tehsil and District Sahiwal on 12-8-1972 from one, Akbar. The land was preempted by Mst. Kalsoom through a suit filed on 16-8-1973. The defendant/vendee's plea that the sale was exempted under the Notification of 28-2-1944 was accepted by the trial Court and accordingly the suit was dismissed on 7-4-1980. The plaintiff/pre-emptor succeeded before the District Judge when his appeal was allowed and his suit was decreed on 1-11-1981, the Court holding that the defendants had not produced any evidence regarding the character of the suit land that it was owned by the Government. The High Court in its Provisional jurisdiction upheld the judgment and decree of the first Appellate Court. Ashraf, the vendee, has filed this appeal by leave of the Court.
8. Civil Appeal No,774 of 2004 relates to the former State of Bahawalpur. Gul Muhammad, pre- emptor, filed a suit for pre-emption on 18-6-1973 regarding the sale of 48 Canals, 18 Marla's of land, situated in Chak No,133/NP, Tehsil Liaqatpur, District Rahim Yar Khan, sold by Mst. Qudsia Begum and Mst. Rashida ,Begum to Atta Muhammad. Gull Muhammad in the meanwhile passed away and his two sons, Bashir Ahmad and Mukhtar Ahmad, were impleaded as plaintiffs. The vendee pleaded exemption under the Notification of 12-6-1944. The plea was not accepted and the suit was decreed in favor of the plaintiffs. The defendant's appeal succeeded before the Additional District Judge on 18-5-1982 and accordingly the suit of the plaintiffs was dismissed. The High Court in its Provisional jurisdiction reversed the findings of the Appellate Court and upheld that of the trial Court. Resultantly, the plaintiffs suit stood decreed. The legal heirs of the defendant have now filed this appeal by leave of the Court.
9. In Civil Appeal No,2115 of 2006, Muhammad Hussain, predecessor in interest of the present appellants, preempted a sale registered on 19-5-1966, in favour of the respondent vendee. The land was situated in Tehsil Chunian, District Lahore, a colony area The vendee sought protection under the Notifications dated 28-2-1944. His such plea was accepted by the Trial Court and the suit was dismissed. The Appellate Court, with reference to the case of SHER MUHAMMAD v. ABDUL KHALIQ (1968 SCM R 320) allowed the appeal and decreed the suit. The High Court, in second appeal, by the impugned judgment reversed the appellate decree. Referring to the cases of NOOR MUHAMMAD v.
MUHAMMAD TUFAIL (1991 SCM R 512) MST. KHURSHID BEGUM v. AHMAD BAKHSH AND ANOTHER (PLD 1985 SC 405) the Court allowed the appeal and dismissed the suit of the appellant.
10. Mr. Gulzarin Kiyani, Senior Advocate Supreme Court, appearing for the appellants in Civil Appeals Nos.285, 286 and 318 of 2001, submitted that the exemption granted by the Notification dated 28-2-1944, issued by the Government of Punjab under section 8(2) of the Punjab Pre- emption Act, 1913, is applicable only to the Government lands and not sale of privately owned lands even if situated in the colony area. Leading the arguments on- behalf of the plaintiffs preemptors, the learned counsel took us to Section 3 of the Government Tenants (Punjab) Act, 1893, empowering the local Government to notify tracts of lands as the property of the Government to which the Act would be applicable. The learned counsel pointed out that the Colonization Act, while repealing the Government Tenants (Punjab) Act, 1893, defined 'Colony' in section 3 to mean 'any area to which this Act shall be applied by order of the Provincial Government and, unless the Provincial Government otherwise directs any area to which the Government Tenants (Punjab) Act, 1893, has been applied". Referring to Notification dated 28-2-1944, the learned counsel submitted that in view of the definition of 'Colony' the exemption granted therein with reference to the Colonization Act, can be extended only to the Government lands and not lands that had become privately owned at the time of sale. He then referred to the case-law mentioned in the leave granting order in support of his contentions, submitting that except for the unreported judgment of this Court in the case of MUHAMMAD YAQOOB v. BARKAT ALI (CIVIL APPEAL NO.53 OF 1985) dated 6-3- 1991, upholding the judgment of the Lahore High Court, the consistent view of this Court has been that the exemption in the Notification is restricted to the sale of Government lands. He thus contended that the High Court in the impugned judgment had erred in pressing into service the said unreported judgment, completely ignoring the other rulings given on the point right from the year 1961.
11. Syed Najam-ul-Hassan Kazmi, Senior Advocate Supreme Court representing the respondent vendee in Civil Appeal No,318 of 2001, leading the arguments on behalf of the vendees very ably went through the entire case-law on the subject to persuade to hold that apart from the judgment in BABU AND ANOTHER v. JALAL DIN AND ANOTHER (PLD 1992 SC 102) this Court has consistently held that once a land has been brought under the Colonization Act, it would remain exempt from right of pre-emption even when the land is ultimately acquired privately. His contentions are not separately noted but are reflected in the discussion that follows.
12. The exemption from pre-emption in both the Notifications dated 28-2-1944 and 12-6-1944, reproduced above in the first paragraph, were issued under section 8(2) of the Punjab Pre-emption Act, 1913. The wordings of the two Notifications are slightly different, but in its scope both are applicable to the colony area to which the Colonization Act applied. The word 'colony' has been defined in section 3 of the Colonization Act to mean "any area to which this Act shall be applied by order of the Provincial Government and, unless the Provincial - Government otherwise directs any area to which the Government Tenants (Punjab) Act, 1893 has been applied". The Colonization Act has been made applicable by section 4 of the Act "to land to which the provisions of the Government Tenants (Punjab) Act, 1893 have been applied and to any other land to which the Provincial Government may by notification in the official Gazette apply it". Section 3 of the Government Tenants (Punjab) Act, 1893 has made it applicable to the lands notified by the Local Government 'to any tract of land which is the property of the Government and is wholly or partly irrigable from a canal, the property of the Government."
13. The admitted position is that the lands that are the subject-matter of these appeals were once owned by the Government in the 'colony area'. However, at the time of their sale giving rise to the filing of the suits for pre-emption they had become privately owned On behalf of the plaintiffs preemptors it was argued that such lands having ceased to be Government lands and had gone into private ownership their sale would no longer remain exempt from pre-emption. On the other hand the stand of the vendees is that upon true construction of the Notifications once the lands had been subjected to the Colonization Act, the change in ownership would not affect the exemption granted to the vendees under the Notifications.
14: The learned counsel for both the parties had referred to the same case-law but placed different construction on the decision given therein. Two of such judgments have been referred to in the leave granting order. To appreciate the arguments of the learned counsel it is necessary to examine the case-law on the point starting from. The year 1961. The first of such reported case is ABDUL KHALIQ v. SHER MUHAMMAD (PLD 1961 BJ 79), where the effect of Notification relating to Bahawalpur came under scrutiny. The High Court held that in order to defeat a suit for preemption on transfer of land in a colony area the defendant vendee, who claims exemption under the said Notification, shall have to prove firstly, that the land was situated in a colony area, which would mean that it was placed under the jurisdiction of a Colonization Officer and secondly, the Colonization Act must have been made applicable to the land. The Court, as a matter of fact, found that the suit land was not notified as 'colony land' in accordance with section 4 of the Colonization Act. The exemption under the Notification was thus not extended. The same case came up before this Court which was reported as SHER MUHAMMAD v. ABDUL KHALIQ (ibid) where the appeal was dismissed and the judgment of the High Court was maintained on the ground that since the suit land was merely put under the control of the Colonization Officer by the Revenue Minister without there being a Notification under section 4 of the Colonization Act, the said Act was not applicable to the land and thus it did not fall within the scope of the Notification granting exemption. The next case was again about the Notification relating to Bahawalpur. The matter came up before the High Court in NATHE KHAN v. MST. RAHMAT BIBI (PLD 1961 (W.P.) BJ 96). Reference was made to the judgment in ABDUL KHALIQ v. SHER MUHAMMAD (supra) and it was held that the exemption under the Notification existed so long as the land was situated in the colony area and governed by the Colonization Act but would cease if it would be shown that the provisions of the Act were not applicable or ceased to have effect on the land in the colony. The Court went on to add that the acquisition of proprietary rights by the transferee of the land from the Government. In the colony area was still subject to sections 30 and 30-A of the Colonization Act and thus the land remained subject to the Act, that consequently it continues to be exempt from pre-emption. In the light of this principle the arguments advanced on behalf of the plaintiffs that upon acquiring proprietary rights by the vendor from the Government, the land had ceased to remain a colony land, was rejected.
This decision came up before this Court in MST. RAHMAT BIBI v. NATHE KHAN (PLD 1969 SC 197). The Court upheld the judgment of the High Court and observed that since the Notification has used the words 'has been applied' and not Is applicable', and since' the original owner of the land was Bahawalpur State and the vendor having acquired proprietary rights after seeking permission for the sale of the property, the land was still subject to the Colonization Act. This emphasis on the words 'has been applied' used in the Notification was reiterated by this Court in MST. KHURSHID BEGUM v. AHMAD BAKHSH AND ANOTHER (ibid), where while examining the exemption from pre- emption under the Notification of 28-2-1944 of land acquired under the provisions of Rehabilitation and Settlement laws, the Court maintained the findings of the High Court, holding:- "the High Court found that the crucial words in the above notification are "has been made applicable" and it observed that since the words in the notification are not to the effect that such lands will be exempt from the right of pre-emption to which this notification is "now applicable" or "is for the time being applicable" but the condition for its applicability only is that it should "have been made applicable". Hence, the lands in question continue to be exempt from the right of pre- emption and the notification in question continues to apply even to lands which have vested in the transferees."
15. Two subsequent reported judgments of this Court are also of note where both SHER MUHAMMAD's case and MST. RAHMAT BIBI's (ibid) case were cited and discussed. In NOOR MUHAMMAD v. MUHAMMAD' TUFAIL (ibid) leave to appeal was granted to consider whether there was any conflict between the said two judgments. In that' case the defense by the vendee that the sale of the land could not be preempted on account of its being subject to the Colonization Act was rejected by the trial Court on the ground that the land was not owned by the State of Bahawalpur but was owned by 'Dhunni Chand at the time when the Colonization Act was made applicable to the State of Bahawalpur vide Notification of 30-4-1926. This Court maintained the judgment of the trial Court and dismissed the appeal of the vendee as the land in question was privately owned and not by the Bahawalpur Government and that the facts of the case were materially similar to those of SHER MUHAMMAD's case (ibid). The Court concluded that, since the lands in dispute in the appeals admittedly were privately owned to which the Colonization Act did not apply, the exemption Notification under Section 8(2) of the Preemption Act, 1913 had no application. This brings us to the case of BABU AND ANOTHER v. JALAL DIN AND ANOTHER (ibid). All the Courts below had held that since at the time of sale of the land the same was privately owned the vendee could not defeat the pre-emption suit on the ground of exemption under the Notification dated 28-2-1944. The cases of SHER MUHAMMAD and MST. RAHMAT BIBI (ibid) again came under discussion and the Division Bench of this Court did not find any conflict in the two and upheld the judgment impugned before it, as all the Courts consistently held that since the suit land was privately owned it was not exempt from the law of pre-emption. Therefore leave to appeal was declined to the vendee.
16. The foregoing resume of the case-law shows that the first clear pronouncement on the question, as to whether the exemption from pre-emption under the said Notifications to 'colony lands' would still apply if the land goes into private ownership, was made in MST. RAHMAT BIBI's case (ibid), whereas it was held that since such land remains subject to Colonization Act and in view of the phrase to which the Colonization Act has been applied' in the two Notifications, the lands would continue to be exempt. In other words once the land is subjected to the Colonization Act, its, sale would remain exempt from pre-emption even if it had fallen into private ownership.
This pronouncement was followed again by this Court in KHURSHID BEGUM v. AHMAD BAKHSH AND ANOTHER (ibid). The principle was again lately applied by this Court in unreported judgment in BASHIR AHMED v. KHUSHI MUHAMMAD ETC. (CIVIL APPEAL NO.676 of 1994) dated 11-2- 1999. Two of the cases relied upon by Mr. Gulzarin Kiyani, Senior Advocate Supreme Court, the learned counsel appearing for the preemptors, are distinguishable on their own facts. In SHER MUHAMMAD v. ABDUL KHALIQ (ibid) this Court found as a fact that the land in question was never subjected to the Colonization Act but merely placed under the supervision of the Colonization Officer and thus did not qualify for exemption from pre-emption. Similarly in NOOR MUHAMMAD v. MUHAMMAD TUFAIL
(ibid) the Court followed. SHER MUHAMMAD's case (ibid) holding that since the land in question was privately owned and not by the Bahawalpur Government, the facts being similar to that of SHER MUHAMMAD's case (ibid), the sale of the land was held to be pre-emptable. This leaves us with a case of BABU AND ANOTHER v. JALAL DIN AND ANOTHER (ibid), strenuously relied upon on behalf of the pre-emptors. The Court there, without tracing the history of the status of land, simply accepted the concurrent findings of the Courts that the land in dispute was privately owned at the time of the sale. Reference there was made to the cases of SHER MUHAMMAD (ibid), MST. RAHMAT BIBI (ibid) and NOOR MUHAMMAD (ibid) but the principle laid therein was not discussed. This decision by a Division Bench of this Court, for whatever its worth, cannot take precedence over the judgment by a four Member Bench of this Court in the case of MST. RAHMAT BIBI (ibid), followed in KHURSHID BEGUM v. AHMAD BAKHSH AND ANOTHER (ibid), more so when leave to appeal was declined to the petitioners. It follows that the land once declared as a 'colony land' and subjected to the Colonization Act will remain subject to the Act and thus exempt from pre-emption under the B two Notifications referred to above, notwithstanding that the property had ultimately become privately owned.
17. In the light of the above principle laid down, Civil Appeals Nos.285, 286, 318 of 2001 and 2115 of 2006 are dismissed, Civil Appeal No,1679 of 2002, filed by the appellants vendees, is allowed. The impugned judgments of the High Court and the District Judge are set aside. Resultantly the judgment and decree of the Trial Court is restored and as a consequence the suit of the plaintiff respondent is dismissed. Similarly Civil Appeal No,774 of 2004 filed by the vendees is allowed. The impugned judgment of the High Court is set aside and that of the Additional District Judge is restored, with the result that the suit of the plaintiff respondent is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.