A.M.TIWANA, J.-This civil revision arose out of the judgment aad decree, dated 5.4.1988, whereby a learned Additional District Judge at Kasur had dismissed the appeal of the defendants-pethioaers against the judgment and decree, dated 1.12.1985, by which a Civil Judge at Chunian had decreed the preemption suit of the plaintiffi-respondents is respect of a piece of land measuring 24 kanals 8 marlas situated ife the area of Chak No.4 (Verma), Tchad Chunian, on the payment of Rs.
12,006/- as pre-emption money.
2. Brief facts of the caae are that on 123.1969 Ghulam Muhammad respondent had sold the said land through a registered sale deed in favour of respondents No.6 to 9 (defendant No2 to S) far an ostr aside sale price of Rs. 12000/-. Oa 29.4.1969 respondents Noj6 to 9 (defendants NoJ2 to 5) further sold the suit land to the petitioners herein (defendants Noj6 to 11) by means of oral sale for the same sale pice of Rs. 12000/-. Try Din, the predecessor of respondents No.1 to 4, asserting Ins superior right of pre-emption against the defendants-vendees on the ground of Us kinship wifi the vesmar and co- ownership m the smt khata, brought the suit to pre-empt the sabseqaeat 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 to 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 u/s 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 irrigiable 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.Dl) 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.l96-B, dated 28.2.1944, issued u/s 8 (2) of the Punjab Pre-emption Act 1913, its sale stood exempted from preemption. In support of these contentions, he quoted Nathe Khan vs. Mst.
Rahmat Bibi and others (PLD 1961 (W.P) Baghdad-ul-Jadid 96), the Division Bench ruling which was approved by the Supreme Court in Mst. Rahmat Bibi, vs. Nathe Khan and others (PLD 1969 S.C. 197).
6. On the other hand, the leamed 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 irrigible 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 Governor it 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 Exhd.
P-9 to Exh. P-17), the land fust belonged to some Non- Muslim owners and after their migration then to the Muslim allottees and finally to Ghulam Muhammad vendor as full owner. According to him, from these entries of the revenue record it appeared that the non-Muslims had some the in the year 1935-36 or even prior thereto obtained proprietary rights of the disputed land and with the acquisition of such rights, the 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 u/s 8(2) of the Punjab Pre-emption Act 1913 had any relevancy thereto and no fauIt 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 vs. Sher Muhammad and others (PLD 1961 Baghdad-ul-Jadid 79), a Division Bench ruling approved by the Supreme Court in Sher Muhammad vs. Abdul Khaliq and others (1968 SCMK 320). He also quoted recent ruling of the Supreme Court reported as Noor Muhammad vs. Muhammad Tufajl and others (1991 SCM R 512) therein both the above mentioned 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 u/s 3 of the Government Tenants (Punjab) Act 1893 (copy Exh. D-3/2) read with the contents of the plan indicating the check- bandi of different villages, including Chak No.4, being irrigated by Rusa Minor emanating from Rajbah Wahn (copy Exh. D1) coupled with copy of Shajra Nasab Abad-Karan/copy of Shariat Wajbul Araz of Mouza Kamboke No.4 prepared on 23.8.1912 (copy Exh. DF) wherein the above mentioned 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 check 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:- #tbssA4J> 's'Js's*#tbe#tbsa L#tbeI t ^ ^ I i f u - - "O- Vj- d I' >1 5 "^ar^---------- sfrS QfJ* {{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 vs. 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 vs. 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.l96-B, dated 28,2.1944, issued u/s 8(2) of the Punjab Pre-emption Act 1913, unless the application of 1912 Act was specifically excluded u/s 5 thereof which exclusion was not proved from the record. In other words, at the the of sale of the.
Suit land, the Colonization of Lands (Punjab) Act 1912 was applicable thereto and by virtue of Notification No.1 96-B, dated 28.2.1944, its sale was exempt from pre-emption under the Punjab Pre- emption Act 1913. In my opinion, the authority known as Sher Muhammad vs, Abdul Khalid and others (PLD 1961 Baghdad-ul-Jadid 79) did not apply to the facts of this case and the plaintiffs- respondenLs could not take benefit thereof, nor they could avail of the requisite authority of the Supreme Court reported as Noor Muhammad vs. Mohammad Tufajl 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.