2004 PLP 1150 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.‑‑‑This petition for special leave, to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment, dated 5‑11‑2002 passed by a learned Single Judge of the Peshawar High Court, Abbottabad Bench, in exercise of his revisional jurisdiction in a pre‑emption matter.

2. The relevant facts giving rise to this petition, are that Mst. Maryam Jan, respondent No.1 herein, while exercising right of pre emption in respect of sale arising out of Mutation No. 1001 attested on 20‑9‑1977 on the basis of a decree, dated 12‑7‑1977 :filed a suit for pre‑emption. The suit was dismissed by the trial Court vide judgment, dated 13‑6‑1981 but it was decreed by the Additional District Judge, Abbottabad, vide judgment, dated 30‑7‑1983 in appeal. The decree was challenged by the present petitioners through a revision petition in the High Court which was allowed vide judgment, dated 22‑11‑1988 and the case was remanded for decision afresh after impleading the petitioners Nos. 1 and 2 as party.

3. The suit was again dismissed by the trial Court vide judgment, dated 11‑6‑1990 but was decreed by a learned Additional District Judge vide judgment, dated 5‑3‑1994 and the revision petition filed by the petitioners against the judgment and decree passed in the second round of litigation was dismissed by the learned Single Judge in the High Court vide the judgment impugned.

4. Learned counsel for the petitioners has contends decree, dated 12‑7-1977 on the basis of which mutation of sale, subject matter of pre‑emption suit being no more in field, the pre‑emption decree would be of no legal consequence and in any case the petitioners being co-sharers in the property would have equal right of pre‑emption.

5. We having heard the learned counsel for the petitioner find that the High Court has committed no illegality in holding that the decree in pre‑emption suit passed on the basis of superior right of pre‑emption could not be reversed on the ground that pending disposal of revision petition in the High Court, the decree, dated 12‑7‑1977 on the basis of which mutation of sale was sanctioned was set aside vide order, dated 12‑7‑2002. The pre‑emption decree would not be undone by getting the earlier decree set aside after lapse of a period of 25 years and in any case the right of a person established through the judicial determination and the decree passed by a Court on the basis of said right which attained finality must not be allowed to be defeated after such a long time on a technical ground.

6. The improvement of status by the petitioners by becoming, vendee of the part of the suit land vide Mutation No. 1024, dated 11‑7‑1978 during the pendency of the pre‑emption suit, would be of m use to them as the transaction of sale in favour of petitioner had take place much after the expiry of period of limitation for filing the pre emption suit under N.‑W.F.P. Pre‑emption Act, 1950, therefore, the improvement in question would not defeat the superior right of pre emption of Mst. Maryam Jan.

7. The learned counsel for the petitioners has not been able to point out from the record that the concurrent findings of two Courts on the question of fact were suffering from any material defect calling for interference of this Court. We having considered the contentions raised by the learned counsel in support of this petition in the light of the record have not been able to find out any misreading or non‑reading c evidence on the part of the appellate or revisional Court or an existence of a substantial question of law for adjudication by this Court.

8. For the reasons given above, this petition being without any substance, is dismissed and leave is refused. M.H./M‑869/S Petition dismissed.