1994 PLP 745 (MLD)

The relevant facts briefly stated are that the suit for possession by pre -emption filed by Muhammad Hussain and others, appellants, against Rasoolan Bibi, defendant-respondent, claiming superior right of pre-emption on account of being heirs of vendor which qualification was statedly not possessed by the defendant-respondents, was decreed by the learned trial Court vide judgment and decree, dated 17th March, 1970. The appellants as well as Jehanan vendor, were held to be descendants of Fateh Muhammad common ancestor, and as such had the superior right of pre-emption as against Rasoolan Bibi, respondent-vendee. The first appeal filed by Rasoolan Bibi, respondent, however, succeeded before the learned Additional District Judge, Sialkot vide judgment and decree dated 21st October, 1970. Finding on Issue No.l was reversed observing that superior right of pre-emption of the plaintiffs appellants was not established on record. This finding was returned making note of the arguments of learned counsel for respondent to the effect that Muhammad Hussain, appellant while appearing as his own witness could not give the details of connection of the plaintiffs with the common ancestor; he could not give the name of great-grandfather of vendor Jehanan or that of his own great-grandfather and that pedigree-table Exh.P/1, placed on record does not-establish that Muhammad Hussain etc. plaintiffs were connected with common ancestor, Fateh Muhammad. This led to filing of the present second appeal.

2. I have heard learned counsel for the parties and have gone through the record with their assistance. The plea that the plaintiffs were the heirs of vendor and they held the right of inheritance qua the land in question was controverted in the written statement by making a mere denial. The parties led their evidence. The plaintiffs-appellants produced pedigree-table, Exh.P/1, Jamabandi, Exh.P/2. Muhammad Hussain, one of the plaintiffs, entered into the witness box as a witness of the plaintiffs and deposed that the plaintiffs are Yakjadi of the vendor and that the name of their common ancestor was Fateh Muhammad. In cross-examination, he could not either give the name of his own great-grandfather or that of Jehanan, vendor. This part of the cross- examination was misread by the learned Additional District Judge as in the judgment it has been noted that Muhammad Hussain could not give the name of grandfather of Jehanan, vendor and that of his own grandfather. Had there been no misreading, the decision may have been to the contrary. On behalf of defendant, Muhammad Inayat Ali, special attorney, appeared as D.W.2. Besides himself, he produced another witness, namely, Lal Din as D.W.1. Both of them did not say anything whatsoever with respect to the claimed relationship. The pedigree-table, Exh.P/1 admittedly contains the names of appellants-plaintiffs as descendants of Fateh Muhammad. Jehanan, vendor, has also been shown as one of the descendants of Fateh Muhammad through Shahadat. This pedigree-table pertains to Khewat No.17 of Jamabandi, Exh.P/2 pertains to same Khata and shows the heirs of Fateh Muhammad through Shahadat as owners of the land in the said Patti. Learned counsel for the respondent-defendant submitted that in the Jamabandi the names of plaintiffs-appellants do not appear in the column of ownership. The names of the plaintiffs would have appeared in the column of ownership of the Jamabandi, if they had been co-sharers in the said land. They are not claiming to be the co-sharers. They are merely claiming to be collaterals of Jehanan, being the descendants of one common ancestor. This claim, in the circumstances, of the case cannot be repudiated merely because Muhammad Hussain was not able to give the names either of his great-grandfather or of that of Jehana, vendor. The pedigree-table, Exh.P/1 was available in the register Haqdaran consolidation for the year 1961-62 and same has been produced from the permanent Revenue Record and as such presumption of truth attaches to it. Moreover, the civil causes have to be decided on the basis of preponderance of evidence. Except for the aforenoted deficiency mentioned in the impugned judgment which is also based on misreading of evidence, nothing was brought on record by respondent to show that the pedigree-table Exh.P/1 read with. Jamabandi, Exh.P/2 cannot be relied upon. The preponderance of evidence is in favour of the plaintiffs-appellants. In the circumstances and for the reasons given above, the learned first appellate Court acted arbitrarily in concluding that the plaintiffs had not established their superior right of pre -emption on record. The judgment dated 21st October, 1970 of the learned Additional District Judge is, therefore, set aside with the result that the judgment and decree of the trial Court stands restored and shall hold the field. The amount directed to be deposited by the learned trial Court under its judgment dated 17-3-1970 if not already deposited shall be deposited by 15th February, 1993. The appeal is accordingly allowed with costs. H.B.T./M-769/L Appeal allowed.