1. ' Second appeal by the defendant arose from a pre-emption suit filed by respondents to pre-empt sale of land in dispute in her favour. Pre-emption suit was decreed by the trial Court on 12-6-1984, subject`to payment of Rs,50,000 by a specified date in the decree. Appeal from the decree of the trial Court preferred by the appellant was dismissed on 24-11-1986 by District Judge, Okara.
2. Thereupon, a second appeal was filed in this Court It was admitted to hearing on 20-4-1988.
3. ' Relevant facts giving rise to the second appeal in brief are Abdul Haig son of Allah Ditta was occupancy tenant on 9 Kanals, 5 Marlas of land in Chak No, 39/3-R. Of Tehsil Okara. Occupancy tenancy was regulated by the Colonization of Government Lands (Punjab) Act, 1912. By a deed registered on 26-8-1981, he sold his occupancy tenancy to the appellant for a sum of Rs,50,000. Rs, 22,000 were paid in advance and balance of Rs,28,000 was paid at the time of registration of the sale-deed. Registered deed was implemented in Revenue Records by attestation of Mutation No,187 on 30-9-1981.
4. ' Three real brothers of Abdul Haque, namely Muhammad Yaqoob, Mahboob Alam and Abdul Wahid claimed pre-emption in resect of the sale of occupancy tenancy. Superior right of pre- emption was asserted by them on the ground of relation and co-sharership in the joint occupancy tenancy held by four brotheRs, Price paid for the land was disputed. It was averred that the land was in fact sold for Rs,42,000 and the same was its true market value.
5. ' Appellant resisted the suit. She submitted that pre-emption suit was collusive; plaintiffs had waived pre-emption and were estopped to sue; sale of occupancy tenancy rights was not pre- emptible; land was purchased for Rs,50,000 and the same was paid to the vendor; improvements worth Rs,9,000 were effected on the land after its purchase by the appellant and in the event of a decree against her, she was entitled to be reimbursed of the expenses incurred by her upon improvements of the land. Though initially, the price paid for the land was disputed by the respondents, yet at the trial, they consented for its payment to the appellant. Consequently, issues 3 and 4 were not agitated in the trial Court. Upon taking evidence from the parties on the issues settled for determination, the trial Court decreed pre-emption suit in favour of respondents. It held that sale was pre-emptible; respondents were possessed of superior right of pre-emption; pre- emption suit was not collusive and they had not waived pre-emption and improvements on the land in dispute were not established. In appeal, the decision of the trial Court was endorsed.
6. ' On behalf of the appellant, learned counsel reiterated the same points and argued that lower Courts by grossly misreading of record gave incorrect conclusions on issues Nos,1, 5 to 7. Learned counsel for respondents defended the impugned judgments and decrees upon the reasoning given in them.
7. ' Upon hearing the learned counsel for the parties, first point for consideration would be; whether sale of occupancy tenancy by Abdul Haque was pre-emptible. Occupancy tenancy fell within the ambit of 'agricultural land' as defined in section 3 (1) of Punjab Pre-emption Act (Act I of 1913). Its sale was susceptible to pre-emption. Two judgments of this Court reported in Amir Din etc. v. Sabir Hussain PLD 1979 Lahore 896, Musa v. Abdullah and another 1988 M LD 917 were in support of this view. Location of the land being in colony area was wholly inconsequential and did not prohibit pre-emption in respect of sale of it. In the precedent case reported in PLD 1979 Lahore 896, it was expressly observed that upon rescission of the notification, on 2-3-1973, the bar for pre-emption on the sale of colony land had vanished. I am in respectful agreement with enunciation of this view.
8. Therefore, the sale of occupancy tenancy permitted under section 19 of Punjab Act V of 1912 was pre-emptible at the instance of respondents. As for waiver or estoppel, practically there was no evidence to support them. Respondents were neither shown present at the time of sale nor had they participated in it. Their case was that of total ignorance of sale and the evidence given against them did not refute it. Plea of collusion also goes overboard for want of evidence led in support of it. Except for the self-serving statement of Mukhtar-e-Khas of appellant, there was no evidence to suggest waiver or estoppel. Learned counsel for the appellant found it difficult to successfully urge anything in its support. Regarding expenses of improvements effected on the land, though the appellant's witnesses gave some evidence but it was not found strong and convincing in the lower Courts. Consequently, the issue was found against the appellant. Re- examination of the record could lead to no different conclusion. Courts of fact had jurisdiction either to believe or disbelieve oral evidence led on the issue of improvements. It was evident from their judgments that they did not think it fit to rely upon the evidence given by the appellant. They gave good reasons for it. It being a finding on a question of fact based on proper appreciation of record was not open to a further review in second appeal. Therefore, I would hold it binding on the appellant.
9. ' In view of the aforesaid, second appeal has no merits in it. It is dismissed with no order as to its costs in this Court.
10. ' Records be returned.