SYED JAMSHED ALI, J. - This is vendees second appeal in a preemption matter. The pre-emptor succeeded in both the Courts. It arises out of the following circumstances.
2. Mst. Ayesha, daughter of Allah Ditta, owned land measuring 12 Kanals, 16 Marlas in Chak No. 9 Syed Wala, Tehsil Chunian. By virtue of registered sale-deed dated 22.1.1970, she sold this land to the appellants for a consideration Of Rs.3,000/-.
3. The respondent, a collateral of the vendor, pre-empted the said sale. The appellants-vendees contested this suit on a number of grounds including that Chak No. 9 Syed Wala was situated in a Colony Area to which the Colonization of Government Lands (Punjab) Act, 1912, applied and therefore, the sale was not pre-emption. Necessary issues were framed and the suit was tried.
4. The plaintiff-respondent was held to have superior right and that the land sold being in private ownership the sale was pre-emption. This was vide judgment and decree dated 10,4.1976. The appellants took an appeal before the learned District Court. The findings of the learned Trial Court were affirmed. Accordingly, the appeal was dismissed on 19.7.1978.
5. Learned counsel for the appellants has pressed only Issue No. 6 which is reproduced below:- "Whether the suit land is not subject to pre-emption? OPD."
In making his submissions he relied on Ext. D-3 a notification issued by the Punjab Government on 18.8.1987 which was published in the Punjab Gazette on 19.8.1897. According to this Notification, the provisions of Government Tenants (Punjab) Act No. III, of 1893 was extended to a number of villages of Tehsil Chunian. Chak No. 9 was included in this- Notification. Ext. D-2 is not a notification. It referes to the Notification dated 6.12.1910 tinder Section 7 (2) of the Punjab Pre emption Act. 1905.
According to which no right of pre-emption will exsit in any local area to which the Government Tenants (Punjab) Act, 1893 had been made applicable. It was then followed by Notification No. 196- R, dated 28.2.1944 under Section 8 (2) of the Punjab Pre-emption Act, 1913. This notification was issued in pursuance of the Notification dated 6.12.1910. According to this notification no right of pre- emption shall exist in any local area to which the Colonization of Government Lands (Punjab) Act, 1912 has been made or hereinafter be made applicable. The Notification dated 28.2.1944 was rescinded vide Notification No. 662-73/447-LR-3, dated 19.2.1973 which was published in the Punjab Gazette on 2.3.1973.
6. In support of his submission, the learned counsel for the appellants relied on Mst. Rehmat Bibi Versus Nathe Khan and others (PLD 1969 S.C. 197).
7. On the other hand, the learned counsel for the respondent has contended that the land in dispute has throughout been privately owned to which neither the Government Tenants Punjab Act, 1893 nor the Colonization of Government Lands (Punjab) Act, 1912 was applicable, in support of his submission he relied on Sher Muhammad and others Versus Abdul Khaliq and others (1968 SCM R 320).
8. I have heard the learned counsel for the parties and had the benefit of going through the case cited at the bar. The onus of the issue was on the defendant. No evidence has been led to show that the land in dispute has ever been in the ownership of the Punjab Government. On the other hand, the pre-emptor-respondent placed on record Jamabandi for 1936-37 (Ext. P.6) Jamabandi for 1941-42 (Ext. P.7), Jamabandi for 1945-46 (Ext. P.8), Jamabandi for 1949-50 (Ext. P.9), Jamabandi tor 1954-54 (Ext.P.10) and Jamabandi for the years 1957-58 (Ext.P.11). In all these Jamabandi&s the land is shown to be in the ownership of Allah Ditta, father of Mst. Ayesha. Jamabandi for the year 1964-65 (Ext.P.12) shows Mst. Ayesha, the vendor, as a co-sharer, in the khata alongwith others.
9. A perusal of the above documents shows that on the date the Notification dated 28.2.1944 was published the land was in private ownership.
10. In Sher Muhammad's case supra the argument that merely because of inclusion of land in Colony area, it would be exempt from preemption was not accepted. In Mst. Rehmat Bibi case supra, the land undoubtedly belonged to the Government and permission was sought from the Collector for its sale. The aforesaid judgments were considered in Noor Muhammad Versus Muhammad Tufail and others (1991 SGMR 512). The rule laid down in the case of Sher Muhammad supra was followed, and it was held that since the land in dispute (in the said case) was admittedly privately owned to which the Colonization of Government Lands (Punjab) sct, 1912 did not apply, the exemption notification under Section 8 (2) will not defeat pre-emptors right. In the instant case, the land was privately owned and it has not been brought on record that it was ever owned by the Government.
11. In view of the above, this appeal has no merit which is, accordingly, dismissed with no order as to costs.