1988 PLP 2234 (CLC)

GUL MUHAMMAD KHAN, J.‑‑ The appellants have challenged the judgment and decree dated 19th June, 1973, passed by the learned Administrative Civil Judge, Rahim Yar Khan, decreeing the suit of the respondents with the condition that they will deposit a sum of Rs.75,000 including Zar‑e‑Panjam on or before 27th July, 1973, otherwise their suit shall stand dismissed with costs.

2. It is contended, by the learned counsel that as it was the property of the Government of Bahawalpur originally, and the Colonization of Government Lands (Punjab) Act, 1912, had also been applied to it, the Pre‑emption Act was not applicable in view of Notification No.74 issued on 12th June, 1944, under section 8 (2) of the Pre‑emption Act. The learned counsel has referred to the statement of DW 6 and map produced by him as D.W. 6/1. He has also made an application under Order XLII, rule, 27 C.P.C. for production of another plan as additional evidence. It is same plan as D.W. 6/1, though it has in addition the numbers of rectangles. The learned counsel for the respondents have no objection to it. This map, therefore, is allowed as an additional evidence in the case.

3. The learned counsel for the respondents very candidly conceded that the land in dispute was owned by the Government before its sale to the predecessor‑in‑interest of the appellants but denied that the Colonization of Government Lands Punjab Act had, at any stage, been applied to it. He referred to the statement of D.W. 6 and the map D.W. 6/1, produced by him in support. According to the indications at its bottom the portion within the asterisks is the area in new chak colony whereas the one within the red lines is not included in the new chak. The new map produced by the learned counsel as additional evidence gives the rectangle numbers also. The disputed land more clearly given in Exh. D.6. Jamabandi for the year 1966‑67, does admittedly fall within the rectangles 372/15, 392/8, 392/16, 393/5, 393/6, 393/9, 393/10 and 393/13. The new map as well as D.W. 6/1 would show that the above rectangles are in the red‑lined area and hence it is not a colony land. In this view of the matter the appellants, in order to succeed, must have shown or proved that the Colonization of Government Lands (Punjab) Act had in fact been applied to these lands. Reference be made to the following observations in Abdul Khaliq v. Sher Muhammad (P L D 1961 B.J. 79 (85) ) :‑ " .It follows, therefore, that before a suit for pre‑emption on transfer of land could be defeated on the ground that Notification No.74, dated the 12th of June, 1944, barred such a suit two things had to be proved, the first being that the land was situated in, a colony area which expression would in the context mean an area placed under the jurisdiction of a Colonization Officer and the second being that the Colonization of Government Land (Punjab) Act must have been applied to the land in question .."

4. A similar view was taken in Nathe Khan v. Mst. Rehmat Bibi (P L D 1961 (BJ) 96 (103), and approved by the Supreme Court in Mst. Rehmat Bibi v. Nathe Khan (P L D 1969 SC 197) in the following words: ‑ ".. 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 of Government Lands (Punjab) Act, 1912, has been applied. 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 Act was issued by the Government of Bahawalpur but they, however, unmistakably point to the conclusion that the Act had been applied to the land in suit. As the words used in the notification are 'has been applied' and not 'is applicable and the question that falls for determination is whether the Act was as a matter of fact applied to the land in suit... "

5. There is no other evidence showing that the Colonization of Government Lands (Punjab) Act, 1912, had been applied to it. In fact it is not included in the chak colony as stated above. Consequently, the above notification did not apply to it so as to exempt it from the Pre‑emption Act. As the appellants failed to prove the above, we do not find any illegality or error in the judgment of the trial Court and dismiss this appeal with costs. M. Y.H/M‑736/L. Appeal dismissed.