ABDUL SHAKURUL SALAM, J.---This order will deal with Civil Appeals Nos.310 and 311 of 1981, by leave, as these arise in similar circumstances.
2. Relevant facts for the disposal of these appeals are that one Duni Chand was owner of land in Chak No.9/Fd. Tehsil Chistian in the Jamabandis for the year 1924-25 till 1946-47. After his evacuation land was allotted to displaced persons from whom the appellants purchased through two mutations sanctioned on 2-12-1966. Muhammad Tufail and Ahmad Ali respondents filed pre- emption suits which were decreed by the learned trial Court on 31-5-1981. The appellants filed appeals before the District Judge and raised an objection that the land was exempt from pre- emption because the same fell within the colony area and that the Colonization of Government Lands Act was applicable to the land. Their application under Order VI Rule 17 was accepted and amendment in the written statement was allowed. The matter was returned to the trial Court for framing of an additional issue in view of the fresh amendment and to give finding on the said issue.
Accordingly, issue No.1-A was framed which read as under:-- "Whether the suit land is exempt from pre-emption for the reason stated in the preliminary objection No.1-A of the written statement? OP."
After the trial, the learned trial Court found that the suit land was owned by Dunni Chand and not owned by the Government of State of Bahawalpur at the time when the Colonization of Government Lands Act, 1912 was made applicable to the State of Bahawalpur vide Notification dated 30-4-1926, therefore Notification of exemption under section 8(2) of the Pre-emption Act, 1913 issued on 12-6-1944 was not attracted. Finally, the appeals were dismissed by the learned Additional District Judge II Bahawalnagar vide judgment and decree dated 13-1-1981. The appellants filed two revision petitions which have been dismissed by a learned Judge of the Lahore High Court relying on an earlier decision of a learned Division Bench of the Lahore High Court at Baghdadul Jadid reported as Abdul Khaliq v. Sher Muhammad PLD 1961 Baghdad-ul-Jadid 79, vide order dated 28-2-1981.
3. Leave was "granted to consider whether the land in dispute was subject to pre-emption or was exempted under the Notification of the Bahawalpur Government relevant on the subject and also to see whether there is any conflict between the two judgments of this Court as reported in Mst.
Rehmat Bibi v. Nathe Khan and others, PLD 1969 SC 197 and Sher Muhammad and others v. Abdul Khaliq and others (1968 SCMR 320) and which of them is applicable to the facts and circumstances of this case."
4. Learned counsel for the appellants referred to statutory provisions and the notifications. Section 4 of the Colonization of Government Lands (Punjab) Act, 1912 is as follows:-- Application of the Act--This Act shall, unless the Provincial Government otherwise directs, apply 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 and which at the time of the notification was the property of the Provincial Government: Provided that unless the Provincial Government by general or special order otherwise directs nothing in sections 20, 21, 22 and 23, or in the proviso to section 14, of this Act shall, apply to tenancies specified in Schedule I of this Act, or to any class of tenancies created hereafter which the Provincial Government may declare to be scheduled tenancies:'
In pursuance thereof, his Highness Amir of Bahawalpur on 30th of April, 1926 applied the said Act to the Bahawalpur State. Vide Memorandum dated 7-11-1934, approval of transfer of Chaks Nos. 1 to 21 from Mushir Mal to the control of Colonization Officer was accorded and it was further added that all lands, including proprietary are also approved. Section 8 of the Pre-emption Act is as follows:- "Provincial Government may exclude areas from pre-emption (1) 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.
(2) The Board of Revenue 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 Board of Revenue may specify, shall exist:'
Notification No.74 dated the 12th of June, 1944 was issued from the department of the Prime Minister of Bahawalpur, translation of which 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:'
All the statutory provisions and the notification were subject matter of decided cases. The learned counsel argued persuasively and brought out spacious distinction in the case of Sher Muhammad and others v. Abdul Khaliq and others 1 1908 SCMR 320) and submitted that the later decision in Mst. Rehmat Bibi v. Nathe Khan and others PLD 1969 SC 197 should govern the case. He also referred to unreported decision in Civil Appeal No.246 of 1979 and Civil Appeal No.52 of 1985, decided on 18th June, 1990.
4. After hearing the learned counsel for the appellants and also for the respondents, we find that the first decision in Sher Muhammad's case (1968 SCMR 320) upholds the decision in Abdul Khaliq v. Sher Muhammad and others PLD 1961 Baghdad-ul Jadid 79, in which facts were almost identical as far as relevant for the present purposes i.e. That the land in question was privately owned and not by the Bahawalpur Government. The latter case relied upon by the learned counsel for the appellants Mst. Rehmat Bibi PLD 1969 SC 197, came up from the High Court decision reported as Nathe Khan v. Mst. Rehmat Bibi and others PLD 1961 Baghdadul Jadid 96, wherein the land in dispute was Government owned land and not privately owned land. Therefore, the later decision has no application to the facts of the cases in hand. Similar is the position in the unreported decision in Civil Appeal No.246 of 1979 and Civil Appeal No.52 of 1985 wherein it was observed that "the land in dispute under the relevant provisions of law should be treated as Government property..."
5. 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.