MUHAMMAD AFZAL ZULLAH, CJ: --In this petition for leave to appeal filed by a vendee, who has lost throughout both on facts and law, with the final dismissal of a civil revision, by the High Court, the question raised is: "Whether the exemption from pre-emption under subsection (2) of section 8 of the Punjab Pre- emption Act read with Notification No.196(R), dated 28-2-1944, was extendable to any local area to which the Colonisation of Government Lands Act, 1912, was made applicable?"
2. 'All the learned Courts below have held that the land in dispute at the time of sale in favour of the petitioner was privately owned and was not within any form of ownership of the Government. The High Court while affirming the pre-emption decree in favour of the respondent/plaintiff has carefully examined the various provisions of law relied upon by the petitioner's counsel. It has taken note of a leave to appeal order passed by this Court, Ghulam Rasool etc. v. Deputy Land Commissioner etc. NLR 1981 Revenue 57. In addition another relevant judgment of this Court was also considered Mst. Rehmat Bibi v. Nathe Khan and others (PLD 1969 SC 197).
3. The learned counsel for the petitioner argued that notwithstanding the decision in the case of Mst. Rehmat Bibi, the entire controversy having been re-opened in the leave granting order, in case of Ghulam Rasool, the question again needs to be settled preferably by a larger Bench. In this behalf, he has further contended that there being an earlier Supreme Court judgment, Sher Muhammad and others v. Abdul Khaliq and others (1968 SCM R 320), according to him, there is conflict which requires to be resolved. Ile has also mentioned CA. 203 of 1980 (Abdur Razzak Khan and others v. Qamar Din alias Fateh Din), as still pending, which according to him relates to the same point and is yet to be decided.
4. We have not, been able to find any conflict in so far as the declaration of law is concerned, in the two previous cases of Sher Muhammad and Mst.
Rehmat Bibi. One of the learned Judges was common in both the Benches, which decided these matters and the very fact, that the case of Mst. Rehmat Bibi was approved for reporting and the other was not so approved, cannot be ignored in so far as the position of declared law is concerned. In addition, the same controversy again came up before this Court. The said two judgments were noticed in case of Noor Muhammad v. Muhammad Tufail and others (1991 SCM R 512). The same question has also been decided in CAs. Nos. 53 and 54 of 1985 on 6-3- 1991. .
The crucial question in all these decisions was whether or not the suit land, apt the time of sale, was owned by the private individual, if so, the suit was held competent and no exemption was available to the vendee.
The fact that the learned counsel appearing before a Bench of this Court, in case of Ghulam Rasool, was not aware of the earlier decisions of this Court and thus they were not cited in the reported leave granting order, cannot be made use of by the present learned counsel as a pretext for prolonging the agony of the parties by seeking further examination of the point on which leave to appeal was granted in the said 1981 case. He has forgotten that the judgment in Mst. Rehmat Bibi's case, was by the Bench of five hon'ble Judges of this Court.
The decision having been rendered in cited case, we have, in the meanwhile, seen the final judgment dated 18-6-1990, in the said case of 1981. It has been decided that the land in dispute in that case was Government property and hence it was exempt from pre-emption at the relevant time. In particular, the learned Judges deciding that appeal were at pains to show that the said decision was "under the circumstances and facts of the (said) case". Obviously, if the learned counsel was aware (we told him again and again that the said appeal had been decided) that the decision therein would not be of any help to him, it was unnecessary to rely on that decision before us. Even if he was not aware, it was his duty that if he relied on such an old leave granting order, he should have obtained a copy of the final judgment to assist us.
5. In this case, it has been held by all the Courts below that the suit land was privately owned. It was not exempt from law of pre-emption. Leave to appeal, therefore, has to be refused and the petition is dismissed. It may be noticed that the learned Judge in the High Court did refer to the notification No.622-73/447-LR-III, dated 2-3-1973, which rescinded the notification dated 28-2-1944, therefore, in the cases covered by 1973 notification, no question of exemption would arise.