Sh. Azmat Saeed, J.--This civil appeal by leave of the Court is directed against the judgment dated 31.01.2008, passed by the learned Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby Regular Second Appeal i.e, RSA No, 2 of 1998, filed by the present appellants, was dismissed.
2. The brief facts necessary for adjudication of the lis at hand are that the predecessor-in-interest of the present Appellants, namely Muhammad Din, purchased agriculture land measuring 76 Kanals and 12 Marlas i.e, 14/90 share in Khata No, 1 situated in Colony Chak No, 21-A/NP, Tehsil Sadiqabad, District Rahim Yar Khan from one Sadiq Muhammad (the vendor) on 11.02.1966. The predecessor-in-interest of the respondents, namely her Din, filed a suit for possession through pre- emption under the Punjab Pre-emption Act, 1913 with regards to the said sale, claiming the superior right of pre-emption on the basis of being owner in the same Khata. The sale consideration as well as the market-value of the land in question was also disputed. The said suit was resisted. On the divergent pleadings of the parties, issues were framed, including Issue No, I as to whether the land in dispute was not pre-emptable and Issue No, 4 pertaining to the claim of the Plaintiff that he had a superior right of pre-emption. Issues were also framed with regard to the sale consideration and the market-value of the land in question. However, the issues pertaining to the sale consideration and market-value of the land were decided on Oath with the consent of the parties, leaving the remaining issues to be decided on merits. The learned Trial Court seized of the matter, after recording .Of the evidence, decreed the suit vide judgment and decree dated 11.11.1968. The appellants challenged the same by way of an appeal before the learned First Appellate Court i.e, District Judge, Rahim Yar Khan, which was dismissed on 27.06.1998. The Regular Second Appeal i.e, RSA No, 16 of 1969 was filed before the learned Lahore High Court, Bahawalpur Bench, wherein vide Order dated 14.02.1993, the case was remanded back to the learned First Appellate Court to first decide a pending application filed under Order XLI Rule 27, CPC before proceeding in the matter and vide Order dated 05.06.1994 the said application was rejected and eventually on 27.06.1998 the Appeal was dismissed. Being aggrieved, the appellants filed a regular second appeal i.e, RSA No, 2 of 1998, which was also dismissed vide impugned judgment dated 31.01.2008. The appellants invoked the jurisdiction of this Court by filing civil petition for Leave to Appeal No, 313 of 2008, in which leave was granted by this Court vide Order dated 14.05.2008. Hence, this civil appeal.
3. It is contended by the learned counsel for the appellants that the judgments of three learned Courts below suffer from gross misreading and non-reading of evidence available on the record. It is further contended that the entire documentary evidence, produced by the parties, more particularly, the appellants has been ignored or at best misconstrued and misread. It is the case of the appellants that the land, subject matter of the pre-emption suit, situated in Chak No, 21A/NP, was a Colony Chak, which fact is evident from the documents i.e, Exh.D-1 and D-2. It is also available on record that the original title of the land vested in the State. One Peer Bakhsh, filed an application for its allotment which is available on record as Exh.D-4. The said land was allotted to Peer Bakhsh under the Colonization of Government Lands (Punjab) Act, 1912, (hereinafter referred to as "the Act of 1912"), which fact is duly mentioned in the Revenue Record, produced in evidence, including Exh.D-4 to D-10.
4. In the above context, it is urged that an appropriate Notification had been issued in terms of Section 8(2) of the Punjab Pre-emption Act, 1913, (hereinafter referred to as "the Act of 1913") by the Competent Authority, excluding the Colony lands of State of Bahawalpur, from the purview of an action of pre-emption. The said Notification has been noticed and affirmed and applied by this Court in its various judgments. Hence, the sale in question was not preemptable and the suit was not maintainable and the impugned judgments of the learned Courts below are contrary to the law laid down by this Court.
It is next contended that the predecessor-in-interest of the respondents had filed a suit, claiming superior right of pre-emption on the basis of an oral sale in his favour purportedly in the same khata. Such an oral sale-did not confer any right or title upon the predecessor-in-interest of the respondents to maintain a suit for preemption as Section 54 of the Transfer of Property Act, 1882, (hereinafter referred to as "the Act of 1882") was applicable to the State of Bahawalpur, which requires that any sale of immovable property of the value of more than one hundred rupees is required to be effected by way of a written instrument, which obviously would need to be registered under Section 17 of the Registration Act, 1908. In this view of the matter, it is contended that the suit for pre-emption was liable to be dismissed on this ground alone.
' In support of his contentions, the learned counsel placed reliance upon the judgments, reported as (1) Mst. Rehmat Bibi v. Nathee Khan and others (PLD 1969 SC 197), (2) Muhammad Siddique v.
Muhammad Sharif and others (2012 SCM R 1387), (3) Jangi v. Jhanda and others (PLD 1961 (W.P.)
Baghdad-ul-Jadid 34), (4) Muhammad Bakhsh v. Zia Ullah and others (PLD 1971 Baghdad-ulJadid 42) and (5) Muhammad Fazal u. Kaura through LRs (1999 SCM R 1870).
5. The learned counsel for the respondents has controverted the contentions raised on behalf of the appellants. It was submitted that since one of the respondents had died after the leave to appeal had been granted and no attempt was made to implead his legal heirs, therefore, the Appeal merited dismissal under Order XV Rule 6 of the Supreme Court Rules, 1980. It is added that the issues were framed by the learned Trial Court and the onus of Issue. No, 1 as to whether the transaction relating to the land in question was not pre-emptable was upon the appellants, who failed to produce any specific evidence in this behalf and no Notification, as envisaged by Section 8 sub-section (2) of the Act of 1913, was produced in evidence, therefore, the learned Courts below have rightly decided the said issue in favour of the respondents and decreed the suit. It is further added that no objection was taken by the appellants to the said issue as cast by the learned Trial Court. It is also the case of the learned counsel for the respondents that no objection had been taken by the appellants in their Written Statement that the title of the respondents was defective and not sufficient to maintain a suit for pre-emption and no issue in this behalf was framed, therefore, such an objection cannot be taken or entertained at this belated stage. It is also disputed that the land in question is a Colony Land.
' In support of his contentions, the learned counsel relied upon the judgments, reported as Aziz-ur- Rehman and others v. Ghulam Rasul and others (1986 SCM R 1274).
6. With the help of the learned counsel for the parties, we have perused the evidence available on the record. In his statement the Patwari, who entered the witness-box as DW-1, deposed that Chak No, 21-A/NP was carved out from three existing basties and is within "the Colony Area". In the Revenue Record, the owner was identified as "Sarkar Dault Madar" as is evident from Exh.D-10. One Peer Bakhsh made an application to the Assistant Commissioner seeking allotment of land and such application is available on record as Exh.D-4. Pursuant to the said application, an order was passed and the land in question was allotted to Peer Bakhsh. The factum of such transfer is evident from the copies of the Revenue Record, which have been produced in evidence. The said Peer Bakhsh, subsequently transferred the land in question to the predecessor-in-interest of the respondents and it is such sale, which has been preempted in the instant case. The aforesaid is evident from Exhs-D-1 to D-10. The status of such land is in the erstwhile State of Bahawalpur came up for adjudication before this Court in the case, reported as Mst. Rehmat Bibi v. Nathee KI and others (PLD 1969 SC 197), wherein with regards to the Act of 1912 and the Act of 1913, it was observed as follows: "It will be seen that it is not in dispute that the Colonization of Government Lands (Punjab) Act, 1912, was applied to the State of Bahawalpur. This was done by an order passed by His Highness the Amir of Bahawalpur on the 30th of April 1926.
Section 8(2) of the Punjab Pre-emption Act as applicable to the Bahawalpur State reads as follows: "The Government of Bahawalpur may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre-emption or only such limited right as the Government of Bahawalpur may specify shall exist."
' In exercise of the power under the above provision the Government of Bahawalpur issued Notification No, 74 dated the 12th of June 1944, in Urdu. The translation of the same will read as under: "Under sub-section (2) of Section 8 of the Punjab Preemption Act, which is in force in the State, the Government of Bahawalpur orders that no right of preemption shall exist in respect of lands which are situate in the colony area and to which the Colonization of Government Lands (Punjab) Act, 1912, has been applied or may hereafter be applied."
' It will be seen from this notification that no right of preemption exists in respect of any land which "is situate in the colony area" and to which the Act "has been applied."
7. The aforesaid makes it clear and obvious that the Act of 1912 was applicable to the State of Bahawalpur from 30.4.1926. The record of the instant case reveals that under the Act of 1912, Chak No, 21-A/NP was carved out in 1939 and thereafter the land in dispute was initially allotted under the Act of 1912 and by virtue of Notification No, 74 dated 12.6.1944 such land to which Act of 1912 had been applied was excluded from the purview of the Act of 1913 through a notification of the said date issued under Section 8(2) of the Act of 1913. In the instant case, the sale took place in 1966 during currency of the said Notification. It is not the case of the respondents that said Notifications have been withdrawn or modified later.
8. In the instant case, it is not the original allotment of the land, which has been preempted but a subsequent sale by an allottee. Such subsequent transfer is also not subject to pre-emption, as has been held by this Court in the judgment, reported as Muhammad Siddique v. Muhammad Sharif and others (2012 SCM R 1387), in the-following terms:- "... 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 two Notifications referred to above, notwithstanding that the property had ultimately become privately owned."
9. The predecessor-in-interest of the respondents had instituted the suit for pre-emption, claiming the status of an owner in the same Khata on the basis of an oral sale, which fact is not only admitted between the parties but also evident from the documents produced by the respondents themselves including Exh-P-2. At the relevant point of time, Section 54 of the Act of 1882 was applicable in the State of Bahawalpur, therefore, oral sales were invalid and not sufficient to maintain a suit for pre-emption on the basis thereof. In this behalf reference may be made to the judgment reported as Jangi v. Jhanda and others (PLD 1961 (W.P.) Baghdad-ul-Jadid 34), wherein it was held that Section 54 of the Act of 1882 was applicable to the State of Bahawalpur, therefore, any sale of immovable property of more than Rs,100 must be made through an instrument in writing duly registered under the Registration Act, 1908. The said judgment pertains to the sale effected on 7.11.1954. In a subsequent judgment of Muhammad Bakhsh v. Zia Ullah and others (PLD 1971 Baghdad-ulJadid 42), the said view was followed and with regards to an oral sale ' in 4.6.1965 in the former State of Bahawalpur, it was held that an oral sale in view of the Section 54 of the Act of 1882 did not cloth the purported vendee with a right sufficient to maintain a; suit for preemption on the basis thereof. The relevant portion of the judgment is reproduced hereunder:-- "4. This was the view taken by a Division Bench of this Court in the case of Jangi v. Jhanda and others. Shabir Ahmad, J., delivering the judgment of the Court, observed that "as Section 54 of the Transfer of Property Act has not been complied with; the sale in favour- of the plaintiff, on which reliance was placed, cannot be considered by Court to have been made, as the sale was not admitted by parties to the suit except the one in whose favour it was made." In the same judgment his Lordship also dealt with the question whether the sale which was sought to be pre-empted also suffered from the infirmity attaching to the sale relied upon by the preemptor, but his Lordship did not pursue the matter as it did not directly arise on the pleadings. That question was dealt with at length by the learned Judges of the Supreme Court in the case of Abdul Karim v. Fazal Muhammad Shah. Their Lordships held that "the definition of sale under Section 3(5) of the Punjab Pre-emption Act of 1913, is obviously wider than the one under Section 54 of the Transfer of Property Act, for, it is not governed by the restrictions as to the mode of transfer contained in the latter section. It cannot therefore, in view of this definition, be said that if a sale of a property exceeding the value of Rs,100 is made by a mutation entered in the revenue records such a sale is altogether void. This method of transfer by mutation in the revenue records was certainly recognized in the Punjab, to which the Punjab Pre-emption Act originally applied; as a valid method of agricultural land: "If the right of pre-emption is a right of substitution then certainly the person seeking to pre-empt can be put into the shoes of the stranger purchaser and exercise all the latter's rights including those to which he became entitled under Section 53-A of the Transfer of Property 'Act. " There was no reason "therefore why the transfer in such circumstances should not be preemptible when to hold otherwise would amount to opening the door for fraudulent persons to defeat the law of pre- emption. ..."
10. This Court while dealing with the matter of pre-emption also arising from the same area in its judgment titled as Muhammad Fazal v. Kaura through LRs (1999 SCM R 1870), held as follows:-- "5. However, the learned counsel for the appellants was unable to successfully challenge the legal point as reproduced above in Item No, 3 and as enunciated in PLD 1971 Baghdad-ul-Jadid 42 to the effect that in the area where Section 54 of the Transfer of Property Act is enforced, a superior pre- emptive right as co-sharer cannot be acquired unless the sale on the basis of which co-sharership is claimed, has been made by registered sale-deed. This could not be controverted that Section 54 of the Transfer of Property Act applies in the area in which the disputed sale took place and it could also not be denied that the right of co-sharership for superior right of preemption of the plaintiff was claimed on the strength of sale mutation in his favour and not registered deed. The learned High Court was, therefore, correct in view of the law laid down in PLD 1971 Baghdad-ul-Jadid 42, that by such co-sharership superior right of pre-emption could not be asserted. This rule in the said judgment is to the effect. "In a suit for pre-emption the pre-emptor claimed a superior right of pre- emption on the basis of being a co-sharer in the Khata. This share in Khata was acquired by means of a sale evidenced by mutation. Section 54 of the Transfer of Property Act was applicable to the said sale but no registered instrument was executed. It was held that in absence of registration, the pre-emptor did not acquire any valid right-or title so as to be deemed a co-sharer entitled to exercise the right of pre-emption under Section 15 of the Punjab Pre-emption Act, 1913".
This rule was subsequently approved by this Court in Muhammad Bakhsh v. Zia Ullah and others (1983 SCM R 988) as it was laid down therein "As the transactions did not satisfy the requirements of Section 54 of the Transfer of Property Act they did not confer any right or interest on the plaintiffs/pre-emptors such as could be made the basis for claiming either ownership or cosharership".
11. The contention of the learned counsel for the respondents that a copy of the Notification published in the Official Gazette under Section 8(2) of the Act of 1913 was not produced in evidence, is wholly misconceived, as such Notification has been noticed by this Court and a definite finding in this behalf has also been recorded by this Court in the case of Mst. Rehmat Bibi (supra).
12. In view of the above, it is clear and obvious that the evidence produced in record, more particularly, the Revenue Record and other allied documents i.e, Exhs-D-1 to D-10 and the statement of the Patwari (DW-1) that the land in question formed a part of the Colony Chak No, 21- A/NP and was allotted under the Act of 1912 to Peer Bakhsh on his application made by him in this behalf. The Notification dated 12.6.1944 mentioned above was issued by the Competent Authority in terms of Section 8(2) of the Act of 1913 excluded such colony land from the exercise of the right of preemption. It is also settled law that upon issuance of such Notification, the right of pre-emption, if any, stood extinguished.
13. Such disability did not only extend to the original allotment under the Act of 1912 but also to subsequent transfers and sales as has been held in the case of Muhammad Siddique (Supra).
14. Consequently, the sale in question pertaining to the land in dispute was not pre-emptable. The Courts below have failed to examine and appreciate the evidence available on the record and decided the matter in a perfunctory manner. The judgments are based on non-reading of evidence and misapplication of law in this behalf and therefore, cannot be sustained.
15. Furthermore, it is the case of the respondents that it is an admitted fact evident from the record that the status of the ownership in the same Khata was claimed on the basis of an oral sale. At the relevant point of time, Section 54 of the Act of 1882 was applicable to the area in question, requiring the sale to be effected through an instrument in writing, which obviously would necessitate its registration under the Registration Act, 1908, as has been held in the judgments referred to above.
Such oral sale-does not cloth the purported vendee of a right sufficient to maintain a suit for preemption on the basis thereof. This defect in the title of the respondents was sufficient for dismissal of the suit and this aspect of the matter has been totally ignored by the fora below. Even though, no specific objection/defence in this behalf was taken, yet, it was for the respondents/plaintiffs to show that they had a superior right of preemption and an issue i.e, Issue No, 4 has specifically been framed in this behalf. Even otherwise, as the facts in question are admitted i.e, the predecessor-in-interest of the respondents claimed the title on the basis of an oral sale, it was the duty of the Court to apply the correct law. This legal question, even otherwise, can be raised at any stage, including before us. In this view of the matter, the very suit was not maintainable and ought to have been dismissed at the earliest opportunity.
16. The learned counsel for the respondents attempted to avoid the obvious outcome by pleading that the instant Appeal had abated as one of the numerous respondents had died after the leave had been granted and no effort had been made by the appellants to implead his legal heirs thereof. In this behalf, he had relied upon the judgment of this Court, reported as Aziz-ur-Rehman and others V. Ghulam Rawl and others (1986 SCM R 1274). The counsel for the appellants is clutching at straws. We have examined the said judgment, which shows that thee Appeal was dismissed for non-prosecution, as repeated orders for bringing the legal heirs of a deceased party on the record were not complied with. Such judgment has no application in the facts and circumstances of the case where in the instant case the factum of such fact is now being brought to our notice.
17. In the above circumstances, the impugned judgment of the learned High Court and the judgments and the decrees of the learned Courts below are not sustainable, as the respondents did not enjoy the status entitling them to file a suit for pre-emption. Even otherwise, no right of pre- emption existed qua the property in 'dispute.
18. Consequently, the impugned judgment dated 31.01.2008 of the learned High Court passed in RSA No, 2 of 1998, Appellate Judgment and Decree dated 27.6.1998 of the learned First Appellate Court passed in Appeal and the judgment and decree dated 11.11.1968 of the learned Trial Court passed in Civil Suits No, 102 of 1966 and 576 of 1967 are hereby set aside and the suit filed by the predecessor- in-interest of the respondents is dismissed.
19. These are the reasons of our short Order of even date, which is reproduced herein below: "We have heard the arguments of both the learned ASCs present in Court. For the reasons to be recorded separately, this appeal is allowed, the judgments of all the three fora below are set aside and the suit instituted by the predecessor-in-interest of the respondents is dismissed."