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-- S. 100-Punjab Pre-emption Act (I of 1913), S. 15-Superior right of pre-emption-Issue of fact-Held, needs no interference in second appeal.

(b) Punjab Pre-emption Act (I of 1913)---

-- S. 8(2)-Colonization of Government Lands (Punjab) Act (V of 1912), S. 4-Notification No. 548-D, dated 10th February, 1925 and Notification No. 196(R), dated 28th February, 1944-Pre emption right, existence of-Suit land, prior to sale, owned by government to which Colonization of Government Lands Act already made applicable-Suit land, held, not pre-emptible, in circumstances.

Mst. Rehmat Bibi v. Nathe Khan and others P L D 1969 S C 197 ref.

Ch. Muhammad Hussain Jahania for Appellant.

This Regular Second Appeal arises from the judgment and decree of learned Additional District Judge, Sahiwal, whereby, he on 17th January, 1983 reversed the judgment and decree, dated 4th July, i977 passed by Civil Judge, Pakpattan decreeing the suit for possession by pre-emption filed by Noor Samand appellant/plaintiff against Ismail and others.

2. The facts leading upto this appeal, in brief, are that on 22nd October, 1973 Noor Samand filed a suit for possession by pre-emption against Ismail and others. The suit was contested. On the pleadings of the parties, trial Court framed the following issues :---

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The trial Court decided issues Nos. 1, 2, 2-A and 4 in favour of Noor Samand appellant/ plaintiff and decreed the suit subject to the payment of Rs. 33,412. Aggrieved by this, Ismail and others filed appeal which was entrusted to Additional District Judge, Sahiwal, who, while reversing the judgment of the trial Court on issues Nos. 2 and 2-A, dismissed the suit vide his judgment and decree, dated 17th January, 1983. Hence this second appeal.

3. Before me, the learned counsel has challenged the findings of the learned Additional District Judge on issues Nos. 2 and 2-A. As for issue No. 2, be submitted that the learned Additional District Judge has misread the material evidence which show that the appellant/ plaintiff is the first cousin of the vendor. So far as issue No. 2-A is concerned, the learned counsel submits that there is nothing on the record to show that the Colonization of Government Lands Act was made applicable to the land subject-matter of the case.

4. After hearing the learned counsel and going through the record I find that issue No. 2 is an issue of fact. The learned Additional District Judge has applied his mind to the relevant document and has given sound and cogent reasons in support of his conclusion that the plaintiff's right to pre-empt was not superior. The learned counsel has failed to point out any material misreading/non-reading of evidence effecting the decision of the learned Additional District Judge one this issue.

5. Coming to issue No. 2-A, I find that the learned Additional District Judge has also applied his conscious mind to this issue. The relevant part of his judgment reads as follows :----

"So far as the next contention of the learned counsel of the appel lants that the sale in dispute is not pre-emptible is concerned, the onus to prove this issue was on the appellants. The appellants in order to prove it has led, both oral as well as documentary evidence. D. W. 2 Abdul Hamid Moharrir Sadar Kanoongo office, Sahiwal prepared the script Exh. D-2 of the suit land and stated that the suit land was previously owned by the Provincial Govern ment which was distributed to the non-Muslims in auction through different mutations. D. W. 3 Habib one of the appellants who had also stated that the suit land was previously owned by the Provincial Government and the sale in dispute is exempted from pre-emption. The appellants before submitting application for preparation of script Exh. D-2 sent questionnaire (Buland Sawlat) to the respondent-plaintiff for cross-examination, alongwith a pro forma of cross-examination (Jarah) on the questions raised by the appellants in their questionnaire (Buland Sawlat) addressed to the Sadar Kanoongo, D. W. 1 with respect to the suit land which is also part of the script Exh. D. 2. In that the respondent did not record his cross -examination (Jarah) against any of the questions of questionnaire (Buland Sawlat) except question No. 3 which is as under :---

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This shows that the respondent admitted the fact that the suit land was governed by the Colonization of Government Lands Act and was not pre emptible so that is why this question in (Jarah) was asked that when the Notification of exemption was rescinded. In answer to the above-men tioned (Jarah) of the respondent-plaintiff, D. W. 2 Abdul Hamid Moharrir Sadar Kanoongo office, Sahiwal has written answer from the record. The answer written by D. W. 2 Abdul Hamid Moharrir on the questionnaire Exh. D. 2 also shows that the suit land was previously owned by the Government. The document, i.e. script Exh. D-2 and copies of Mutations Exhs, D-3 to Exh. D-6 also prove that the suit land was previously owned by the Provincial Government and was sold by the Provincial Government to the non-Muslims. The statement of D. W. 2 Abdul Hamid who is Moharrir, Kanoongo office of Sahiwal has also stated from the record that the suit land was previously owned by the Pro vincial Government. So, it is established on the record that the suit land was previously owned by the Provincial Government which was subse quently transferred to non-Muslims. The suit land is situated in Chak No. 209/1313 Tehsil Pakpattan Sbarif, District Sahiwal. Subsection (2) of section 8 of Punjab Pre-emption Act reads as under :-------

"The Local Government 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 sale no right of pre-emption or only such limited right as the local Government may specify shall exist."

Now Notification No. 196 (R), dated 28th February, 1944 runs as follows :-

"In supersession of -----------and in exercise of the powers conferred by subsection (2) of section 8 of the Punjab Pre-emption Act, 1913, the Governor of the Punjab is pleased to direct that no right of pre-emption shall exist in :----

(a) Any local area to which the Colonization of Government Lands (Punjab) Act, 1912 has been or may hereinafter be made applicable-----------''

Notification No. 548-D, dated the 10th February, 1925 runs as under :---------

"In accordance with the provisions of section 4 of the Colonization of Government Lands (Punjab) Act, 1912, the Governor-in-Council is hereby pleased to apply the provision of that Act to all land in the Montgomery and Multan Districts, which is the property of Government and is situated within the Irrigation Limits of the Sutlej Valley Canals."

So vide Notification No. 548-D, dated the 10th of February, 1925 the Colonization of Government Land Act was made applicable to all Government Lands in Montgomery and Multan Districts situated within the irrigation of Sutlej Valley Canals. The number of Chak i. e. 209/1313 where the suit land is situated shows that the suit land is irrigated by E. B. Canal which is off-shoot of Pakpattan Canal and is one of the Sutlej Valley Canals. Paragraph No. 69 of Punjab Colony Manual, Revised Edition 1933 deals with the scope of Sutlej Valley Project and mentions that Pakpattan Canal taking off at Sulemanki which is mainly perennial but has also large perennial branches and a few minor perennial channels. From the above discussion is thus established on record that the suit land was previously owned by the Provincial Government. The sale in dispute took place on 9th January, 1973. The above. mentioned Notification No. 196(R), dated 28th February, 1944 was c still in force, therefore, the sale in dispute which took place on 9th January, 1973 was exempted from the Punjab Pre-emption Act. 1, therefore, set aside the findings of the trial Court on issue No. 2-A and decide the same in the affirmative. No other point has been urged before me."

6. The bare reading indicates that he has discussed the oral as well as the documentary evidence ; has taken into consideration the relevant notifications and has given cogent and sound reasons in support of the conclusion arrived at by him. I am fully convinced that from documents D. 2 to D. 6, statments of Abdul Hamid D. W. 2 Vie Moharrir Qanoongo D. W. 3 Habib and notifications referred to by the learned Additional District Judge it is crystal clear that Colonization of Government Lands (Punjab) Act, 1912, has been made applicable to the suit land and as such the same is not pre-emptible. Reliance may be placed on case Mst. Rehmat Bibi v. Nathe Khan and others (P L D 1969 S C 197).

For what has been stated above there being no merit in the appeal the same is dismissed.

M. A. K. Appeal dismissed.

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