' This civil revision arose out of the judgment and decree, dated 5-4-1988, whereby a learned Additional District Judge at Kasur had dismissed the appeal of the defendants-petitioners against the judgment and decree, dated 1-12-1985, by which a Civil Judge at Chunian had decreed the preemption suit of the plaintiffs-respondents in respect of a piece of land measuring 24 Kanals 8 Marlas situated in the area of Chak No,4 (Verum), Tehsil Chunian, on the payment of Rs,12,000 as pre-emption money.
2. Brief facts of the case are that on 12--1969 Ghulam Muhammad respondent had sold the said land through a registered sale-deed in favour of respondents Nos.6 to 9 (defendant Nos.2 to 5) for an ostensible sale price of Rs,12,000. On 29-4-1969 respondents Nos.6 to 9 (defendants Nos.2 to 5) further sold the suit land to the petitioners herein (defendants Nos. 6 to 11) by means of oral sale for the same sale price of Rs,12,000. Taj Din, the predecessor of respondents Nos 1 to 4, asserting his superior right of preemption against the defendants-vendees on the ground of his kinship with the vendor and co-ownership in the suit Khata, brought the suit to pre-empt the subsequent sale.
3. The suit was resisted by the defendants-petitioners (vendees) and the learned trial Judge framed a number of issues, including issue No,1 which was in the following terms:-- "Whether the disputed land is situated in the colony area and is exempt from pre-emption."
The learned trial Judge, after recording the evidence of the parties and hearing their counsel, decreed the suit, vide his judgment, dated 27-1-1981, and the learned Appellate Court, vide its judgment, dated 29-1-1985, dismissed the vendees' appeal. They went up in revision to the High Court which, vide its judgment, dated 1-4-1985, remanded the case to the trial Court for deciding the suit afresh, after recording further evidence of the parties on issue No,1. He complied with the order of the High Court and, vide judgment, dated 1-12-1985, again decreed the suit. The learned Additional District Judge, vide judgment, dated 5-4-1988, dismissed vendees' appeal, compelling them td file this revision.
4. The contest between the parties centres around issue No,1 as reproduced above. I have heard their learned counsel at some length and with their assistance perused the record.
5. With reference to Notification No,491, dated 18-8-1897, issued by the Government of Punjab under section 3 of the Government Tenants (Punjab) Act, 1893, the learned counsel for the defendants- petitioners contended that this Act was applied, inter alia, to Mauzas 1 to 13 irrigable from Vahn Rajbah of Bari Doab Canal and as such the Colonization of Government Lands (Punjab) Act, 1912, by virtue of section 4 thereof, automatically applied to the suit land because Chak. No,4 (in which the suit land is situated) was included in Mauzas 1 to 13, word `Mauza' being synonymous to the word `Chak'. In this connection he also referred to the photostat copy (Exh.D1) indicating the Chak Bandi of Chak No,4 which was irrigated from Rusa Minor emanating from Rajbah Wahn. He urged that as per Jamabandi of 1908-9 (copy Exh.DG), the disputed land belonged to the Government and by virtue of Notification No,196-B, dated 28-2-1944, issued under section 8(2) of the Punjab Preemption Act, 1913, its sale stood exempted from pre-emption. In support of these contentions, he quoted Nathe Khan v. Mst. Rehmat Bibi and others PLD 1961 (W.P.) Baghdah-ul-Jadid 96, the Division Bench ruling which was approved by the Supreme Court in Mst. Rehmat Bibi v. Nathe Khan and others PLD 1969 SC 197.
6. On the other hand, the learned counsel for the plaintiffs-respondents convassed that Notification No,491, dated 18-8-1897 (copy Exh.DW-3/2), relied upon by the learned opposing counsel, had no relevancy to this case because it inter alia referred to Mauzas 1 to 13 irrigable by Wahn Rajbah of Bari Doab Canal and a Mauza could not be synonymous to a Chak and if the Government had intended to apply the Government Tenants (Punjab) Lands Act, 1893 to Chak No,4 where the suit land is situated, or it intended to apply the Colonization of Government Lands (Punjab) Act, 1912 thereto, then it should have mentioned the Chaks as was done in Notification No,2963-656/22- C-I, dated 12-3-1966 (copy Exh.DW-3/4) which included various Chaks and Rakhs but did not include Chak No,4. He pleaded that as per entries of Jamabandi of 1935-36 to Jamabandi of 1971-72 (copies Exh.P-9 to Exh.P-17), the land first belonged to some non-Muslim owners and after their migration then to the Muslim allottees and fmally to Ghulam Muhammad vendor as full owner.
According to him, from these entries of the Revenue Record it appeared that the non-Muslims had sometime in the year 1935-36 or even prior thereto obtained proprietary rights of the disputed land and with the acquisition of such rights, disputed land ceased to be the ownership of the Provincial Government if at all it was previously its ownership and as such neither the Colonization of Government Lands Act applied to it nor the exemption Notification No,196-B, dated 28-2-1944, issued by the Punjab Government under section 8(2) of the Punjab Pre-emption Act, 1913 had any relevancy thereto and no fault could be found with the concurrent findings of the Courts below on the issue in hand. To re-enforce his contention, the learned counsel placed reliance on Abdul Khaliq v. Sher Muhammad and others PLD 1961 Baghdad-ul-Jadid 79, a Division Bench ruling approved by the Supreme Court in Sher Muhammad v. Abdul Khaliq and others (1968 SCM R 320. He also quoted recent ruling of the Supreme Court reported as Noor Muhammad v. Muhammad Tufail and others 1991 SCM R 512 wherein both the abovementioned rulings of Baghdad-ul-Jadid, as approved by the Supreme Court were considered and distinguished.
7. A perusal of the record, which has been referred to and relied upon by the learned counsel for the defendants-petitioners clearly establishes that the Government Tenants (Punjab) Act, 1893 was applied to Chak No,4 in which the suit land is situated. To be a little more precise, from the contents of Notification No,491, dated 18-8-1893, issued under section 3 of the Government Tenants (Punjab)
Act, 1893 (copy Exh.D-3/2) read with the contents of the plan indicating the chakbandi of different villages including Chak No,4, being irrigated by Rusa Minor emanating from Rajbah Wahn (copy Exh.DI) coupled with copy of Shajra Nasab Abad-Karan/copy of Shariat Wajbul Araz of Mauza Kamboke No,4 prepared on 23-8-1912 (copy Exh.DF) wherein the abovementioned Notification No,491 dated 18-8-1897, issued by the Government of the Punjab has been specifically referred to for the grant of land to the Abad-Karan of Kamboke tribe, it can safely be concluded that the Government Tenants (Punjab) Act, 1893 was applied to Chak No,4 in which the disputed land is situated. The following passages from the copy of Shajra Nasab Abad-Karan of Village Kamboke No,4 (copy Exh.PF) would further elucidate the above conclusion:- {{URDU TEXT}}
8. This being so, by virtue of section 4 of the Colonization of Government Lands (Punjab) Act, 1912, it automatically stood applied to the suit land because, as per contents of Jamabandi of 1908-9 (copy Exh.DG), it was Government-owned land. It appears that subsequently Dakhilkari rights of this land were purchased by some non-Muslims and in the Jamabandi of 1935-36 onward they figured in the ownership column as owners instead of the Government but, as held by a Division Bench of the High Court in Nathe Khan v. Mst. Rehmat Bibi and others PLD 1961 (W.P.) Baghdad-ul- Jadid 96 which authority was approved by the Supreme Court of Pakistan in Mst. Rehmat Bibi v.
Nathe Khan and others PLD 1969 SC 197 and still holds the field, the subsequent acquisition of proprietary rights did not exclude the application of the Colonization of Government Lands (Punjab) Act, 1912 and that of the exemption Notification No,196-B, dated 28-2-1944, issued under section 8(2) of the Punjab Pre-emption Act, 1913, unless the Application of 1912 Act was specifically excluded under section 5 thereof which exclusion was not proved from the record. In other words, at the time of sale of the suit land, the Colonization of Lands (Punjab) Act, 1912 was applicable thereto and by virtue of Notification No,196-B, dated 28-2-1944, its sale was exempted from pre- emption under the Punjab Pre-emption Act, 1913. In my opinion, the authority known as Sher Muhammad v. Abdul Khalid and others PLD 1961 Baghdad-ul-Jadid 79 did not apply to the facts of this case and the plaintiffs-respondents could not take benefit thereof, nor they could avail of the requisite authority of the Supreme Court reported as Noor Muhammad v. Muhammad Tufail and others 1991 SCM R 512 in which the distinction was drawn between the aforesaid two authorities of the Supreme Court.
9. In view, of the above, the findings of the Courts below on issue No, 1 (reproduced above) are reversed and it is decided in affirmative. Consequently, the civil revision is accepted, the impugned judgments and decrees of the Courts below are set aside, and the pre-emption suit of the plaintiffs-respondents is dismissed with no orders as to costs.