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Civil Appeal No. 54 of 1965, decided on 1st April 1969.

(On appeal from the judgment of the High Court of West Pakistan, Lahore, dated the 16th June 1961, to Regular 1st Appeal No. 4 of 1959 (Bahawalpur) ).

, S. 8(2)‑Notification No. 74 dated 12‑6‑1944 issued by Government of Bahawalpur---- No notification under S. 4, Colonization of Government Lands (Punjab) Act, 1912 proved yet jamabandi proving that land in pre‑emption suit was Government land and situate in colony area Such land, held, fell within purview of Notification No. 74 and as such not pre‑emptible.

Abdul Haque, Senior Advocate Supreme Court (Muhammad Asghar Bhatti, Advocate with him) (absent), instructed by Muhammad Ashraf Israili, Attorney for Appellant.

Sh. Abdul Rashid, Senior Advocate Supreme Court instructed by M. Siddiq, Senior Attorney for Respondents Nos. 1‑3.

Respondents Nos. 4‑5 : Ex parte.

Raja Said Akbar Khan, Advocate‑General, West Pakistan (Iftikharul‑Haq, Advocate with him) instructed by Ijaz Ali, Attorney Amicus curiae.

Date of hearing : 1st April 1969.

This certificated appeal by the plaintiff arises out of a suit for possession by pre‑emption. The facts relevant for the disposal of the appeal may be shortly stated.

The land in suit measuring 200 kanals and 5 marlas originally belonged to the Government of Bahawalpur. It was granted to Sher Muhammad, Fateh Muhammad and Khair Muhammad sons of Pir Bakhsh on bara conditions. They then deposited the necessary Government dues to acquire proprietary rights in the land. Thereafter they entered into an agreement of sale of the land with Sadar Din and obtained necessary permission for sale on the 6th of October 1954. The transaction with Sadar Din, however, fell through. They then sold the same land along with the ihatas to Nathe Khan by a sale deed dated the 1 st of November 1954, for Rs. 15,000. The sale deed was registered on the 2nd of November 1954. The appellant Mst. Rehmat Bibi, wife of Sadar Din filed the present suit for possession by pre‑emption of the suit land including ihatas alleging that the land had been sold to defendant No. 1, Natbe Khan for Rs. 12,000 but the price was shown as Rs. 15,000 in order to defeat her rights which were superior to those of the vendee as she was an owner in Chak No. 29/B. C. while Nathe Khan was a stranger to the Chak. Her further case was that no notice of the sale had been given to her. The plaint was later amended and Mahmood Shaukat was implead ed as Defendant No. 2 as he had purchased half of the land.

The defence of defendants Nos. I and 2, inter alia, was that the land in suit was situate in colony area, and the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter called the Act), was applicable to the same and in view of a notification issued by the Government of Bahawalpur under section 8 (2) of the Punjab Pre‑emption Act the plaintiff had no right of pre emption.

The trial Court decreed the suit in favour of the plaintiff. It came to a finding that as no notification applying' the Act to the land in suit had been brought on record the defence of defendants Nos. 1 and 2 that the said Act applied to the land could not be accepted.

The defendant No. 1 filed a Regular First Appeal in the High Court of West Pakistan. The learned Judges of the High Court, on a consideration of Jamabandi for the years 1953‑54 and the fact that the original owner of the land was Bahawalpur State and the land in suit was situate in colony area and the transfer in question was made after taking necessary permission from the Deputy Commissioner, came to the finding that the land in suit was R governed by the Act and in view of the Notification No. 74 dated on the 12th of June, issued by the Government of Bahawalpur, exempting such lands from the provisions of the Punjab Preemption Act, the plaintiff had not the right of pre‑empting the sale in question. T hey, therefore, accepted the appeal preferred by the defendant No. 1 and dismissed the suit of the plaintiff.

The learned counsel for the appellant has contended that as the respondents failed to produce any notification applying the Act to the land in suit the learned Judges of the High Court could ‑not hold on the basis of the Jamabandi papers and the other facts relied upon by them that the Act applied to the same.

It will be seen that it is not in dispute that the Colonization of Government Lands (Punjab) Act, 1912, was applied to the State of Bahawalpur. This was done by an order passed by His Highness the Amir of Bahawalpur on the 30th of April 1926.

Section 8 (2) of the Punjab Pre‑emption Act as applicable to the Bahawalpur State reads as follows:

"The Government of Bahawalpur may declare by notification that in any local area or with respect to any land or property or class of land or property or with respect to any sale or class of sales no right of pre‑emption or only such, limited right as the Government of Bahawalpur may specify shall exist."

In exercise of the power under the above provision the Govern ment of Bahawalpur issued Notification No. 74 dated the 12th of June 1944, in Urdu. The translation of the same will read as under

"Under subsection (2) of section 8 of the Punjab Pre‑emp tion Act, which is in force in the State, the Government of Bahawalpur orders that no right of pre‑emption shall exist in respect of lands which are situate in the colony area and to which the Colonization of Government Lands (Punjab) Act, 1912, has been applied or may hereafter be applied."

at will be seen from this notification that no right of pre‑emption exists in respect of any land which "is situate in the colony area" and to which the Act "has been applied."

Mr. Abdul Haque has contended that as no notification under section 4 of the [Colonization of Government Lands (Punjab)] Act was issued by the Government of Bahawalpur applying the said Act, to the land in suit, no exemption from pre‑emption could be claimed on the basis of the Notification No. 74 dated the 12th of June 1944. The respondents have failed to produce any notification issued under section 4 by the Government of Bahawalpur and the learned Advocate‑General who asked to file the notification under section 4 (if any), has, on the authority of a letter written by the Deputy Commissioner, Bahawalpur, stated that no such notification was issued. Section 4 of the Act ;provides :‑

"This Act shall, unless the Government directs, apply to land to which the provisions of the Government Tenants Act, 1893, have been applied and to any other land to which the Govern ment may by notification in the official Gazette apply it and which at the time of the notification was the property of the Crown for the purposes of the Province. Provided that unless the Provincial Government by general or special order otherwise directs nothing in sections 20, 21, 22 and 23 or in the proviso to section 14 of this Act, shall apply to tenancies specified in Schedule I of this Act, or to any class of tenancies created hereafter which the Provincial Government may declare to be scheduled tenancies under this section."

The notification by which the Act was applied to the State of Bahawalpur made the following modifications in the Act:‑

(1) That wherever the word (Punjab) occurs in the Act, it shall be substituted by the word Bahawalpur'.

(2) That the words Local Government' occurring in the Act shall be substituted by the word Bahawalpur Government'.

(3) That the Government' occurring in the Act shall be substituted by the word 'Bahawalpur'.

It was further said in the notification that wherever the word Punjab Land Revenue Act' and Punjab Tenancy Act', occurred in the Colonization of Government Lands (Punjab) Act, 1912, a. reference shall be deemed to those Acts. it is also said that (1) sections 13, 14, 27 and 31 shall not have application in the State, (2) reference to the Government Tenants (Punjab) Act, 1893, shall be inapplicable, (3) Schedule I shall not be applicable, and (4) wherever in reference to the Crown Grants Act, 1895 the words Commissioner' and Financial Commissioner', occurred reference for the purposes of the State shall be deemed to be to the Revenue Minister of the State.

The learned Judges of the High Court in repelling the conten tion of the present appellant that the Act was not applicable to, the land in question observed as follows:‑

The Colonization of Government Lands (Punjab) Act, 1912, has been promulgated in the State of Bahawalpur and is appli cable to lands to which it is applied by notification in the official; Gazette and to which Government Tenants (Punjab) Act, 1893,. applied, subject to the conditions that the land was property of the Government of the State. No notification applying the Act to the land in question is proved on the record, but from copy of Jamabandi Exh. D. A., Exh. P. Z. and Exh. P. Z./2: and the sale deed in favour of the original grantee it is proved: that the land in suit was Government land and was situate in the new colony to which the Colonization of Government Lands (Punjab) Act applied, as the Jamabandi mentions that the land was granted on bara conditions. It can even be presumed in, case of Government land situate in a colony area that it is, governed by this Act. The proof of the notification would have been conducive, but the application of the Act to the land stands proved despite the non‑production of the notification under section 4 of the Act. The notification if proved would, have been the best evidence but its absence does not bar other proof of the application of the Act to the Colony. On the documents on the record, the inference is irresistible that the Act which applied to the Colony by the necessary notification". It is worthy of note that in the Notification No. 74 dated the 12th of June 1944, the words used are "to which the Colonization o: Government Lands (Punjab) Act, 1912, has been applied . . . . .". (The underlining is by us). The facts to which reference has been made by the learned Judges of the High, Court may not be sufficient to hold that a notification under section 4 of the Ace was issued by the Government of Bahawalpur but they, however, unmistakably point to the conclusion that the Act had beer applied to the land in suit. As the words used in the notification are "has been applied" and not "is applicable", the question A that falls for determination is whether the Act was as a matter of fact applied to the land in suit. The land was situate in the colony area. It was first granted to the vendors on bara con ditions under the Act. The original owner of the land was the Bahawalpur State and it was sold only after acquiring proprie tary rights. The jamabandi papers, the application made by the vendors for permission to sell and the order of the Deputy Commissioner according permission clearly go to indicate that the Act was applied to the said land by the Government of the State of Bahawalpur. The land, therefore, came within the purview of Notification No: 74 dated the 12th of June 1944. The plaintiff is not entitled in view of that notification to pre‑empt the sale.

We, therefore, hold, that the suit has been rightly dismissed by the High Court.

The appeal is dismissed but we direct the parties to bear their own costs.

K.B.A. Appeal dismissed.

[Here in italics]

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