' The facts relevant for the purpose of disposal of this petition seeking revision of the judgment and decree of the learned Additional District Judge, Gujranwala, dated the 5th January, 1982, affirming in appeal the judgment and decree of the learned Civil Judge, Gujranwala, dated the 7th September, 1981, whereby the petitioners' suit for possession by pre-emption of 8 Kanals of agricultural land in dispute bearing Khasra No, 2022, situate in the area of village Mandiala Waraich, Tehsil and District Gujranwala was dismissed, are these. One Hakam, son of Eida, sold .The land in question to Ghulam Rasool Khan, respondent, for an ostensible consideration of Rs,14,000 and Mutation No, 2704 in respect of the sale was attested on the 8th October, 1974. Claiming themselves to be in possession of right of pre-emption superior to that of the respondent on the basis of their being owners of land in the estate of Mandiala Waraich, which qualification the respondent did not enjoy, Atta Hussain Khan and Riyasat Ali Khan, sons of Atta Muhammad Khan, petitioners, instituted suit in the civil Court of Gujranwala on the 4th October, 1975, to pre-empt the sale. The respondent resisted the suit on the ground, inter alia, that the land in dispute was situate within the limits of Gujranwala Cantonment and in the absence of any declaration made by the Provincial Government to the contrary under section 8(1) of the Punjab Pre-emption Act, 1913, there existed no right of pre-emption in respect thereof. The learned trial Civil Judge found that by virtue of Notification No, 127/121G/D5/G/66/67 issued by the Federal Government of Pakistan in exercise of the powers conferred by subsections (1) and (2) of section 3 of the Cantonments Act, 1924, on the 30th August, 1967, the disputed land was included in the area covered by Gujranwala Cantonment.
Consequently holding the suit to be not maintainable in view of the provisions of section 8 of the Punjab Pre-emption Act, he dismissed it.
2. In appeal the petitioners produced before the learned Additional District Judge the Federal Government Notification No, SRO-1077(1)/81, dated the 3rd October, 1981, to indicate that the land in dispute had been excluded from the limits of Gujranwala Cantonment and canvassed for getting the suit decreed. As the right of pre-emption did not exist at the time of sale of the land, on the date of institution of the suit and when the decree was passed by the learned trial Court, the learned Additional District Judge was not inclined to succumb to the argument advanced on behalf of the petitioners, He noticed that by taking up the position that the land had been excluded from the cantonment limits on the 3rd October, 1981, the petitioners admitted its inclusion within the cantonment limits prior thereto.
3. Referring to the provisions of subsection (1) of section 3 of the Cantonments Act, 1924, which empower the Federal Government to declare, by notification in the official Gazette, any place or places in which any part of the regular forces or regular Air Forces of Pakistan is quartered or which, being in the vicinity of any such place or places, is or are required for the services of such forces to be a cantonment, the learned counsel for the petitioners assailed the validity of the above mentioned notification of the Federal Government of the 30th August, 1967, on the ground that it did not cite the reasons for declaring the area to be a cantonment. He contended that preconditions of the notification had not been complied with and that the Government had exercised its powers arbitrarily. The point touching the validity of the notification was raised by the learned counsel for the first time during arguments; it had neither been taken up before the learned Courts below nor in the grounds of revision. The point involves determination of mixed questions of fact and law inasmuch as the fact of quartering the forces in or requirement of the area for services of such forces can be established only by evidence and as such it cannot be answered in the revisional jurisdiction. It may be remarked that mere non-mentioning of such fact in the notification would not render it invalid.
4. The evidence produced by the respondent in the form of copy of the notification of the Federal Government of the 30th August, 1967, copy of the plan of Gujranwala Cantonment, Exh. D.1, copy of the certificate issued by the Cantonment Executive Officer, Gujranwala Cantonment, stating that the land in suit was situate in the limits of Gujranwala Cantonment, Exh.D.2, and copy of the Shajra Kishatwar of the land, Exh.D.3, leaves no room for doubt that the land was within Gujranwala Cantonment. The petitioners did not adduce any evidence. The learned counsel for the petitioners could not dispute the fact that the land lay within the cantonment right from its sale till the decision of the suit. However, he contended that the learned appellate Court below ought to have taken notice of the change of the character of the land inasmuch as it had been thrown out of cantonment area on the 3rd October, 1981, and ought to have settled its judgment on the basis of the change. He maintained that the principle that the pre-emptor must have superior enforceable right of pre-emption at the time of sale, institution and decision of suit was valid in respect of the status and qualifications of the pre-emptor, which in the instant case the petitioners never lost, but did not appertain to the condition and situation of the land. It is difficult to share the view of the learned counsel.
' According to section 4 of the Punjab Pre-emption Act the right of pre-emption means right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or foreclosures of the right to redeem such property. Subsection (1) of section 8 of the Act lays down that except as may otherwise be declared in the case of any agricultural land in a notification by the Provincial Government no right of pre- emption shall exist within any cantonment. The law on the point has been well-settled by a long line of precedents. Irrespective of the status or qualifications of the pre-emptor no right of pre- emption exists in respect of sale of any land which is within a cantonment unless the Provincial Government has by a notification otherwise declared. Further for a pre-emptor to succeed the right of pre-emption must exist at three stages: At the time of sale of the land, at the time of institution of the suit and at the time the suit is decided. The Supreme Court judgment in Mst.
Nawaz Fatima v. Muhammad Sarwar NLR 1981 SC J 653, wherein the facts were almost analogous to those of the case in hand, reaffirms this principle. Indisputably right of pre-emption touching the sale of the land in dispute did not exist when it was purchased by the respondent, when the petitioners instituted suit and when the suit was dismissed because the land during this period was within the cantonment area. Exclusion of the land from the cantonment area after the decision of the suit would not have been of any help to the petitioners and the learned appellate Court, in view of the law applicable to pre-emption cases, could not give effect to such exclusion of the land from the cantonment limits. The petitioners' suit and appeal were rightly dismissed. There is no room for interference in revision. The petition is dismissed with costs.