1989 PLP 4228 (MLD)

Main Abdus Sattar Saleemi for Petitioners. Malik Noor Muhammad for Respondent. Date of hearing: 18th January, 1989 This revision petition arises out of a suit for possession through pre -emption filed by the respondent and one Amir Khan to pre-empt the sale of land measuring 72 Kanals situated in Chak No. 249/W.B., Tehsil Lodhran, District Multan. The said land was purchased by the petitioners through a registered sale -deed dated 10-4-1980 for a sum of Rs. 1,08,

000. The disputed land was 36/88 share from Khewat No. 58.

2. Right of pre-emption was claimed by the respondent on the ground of being collateral of the vendor, co-sharer and owner in the estate. He also claimed that only a sum of Rs. 42,000 was paid by the petitioners/vendees and the inflated amount of Rs. 1,08,000 was mentioned in the sale-deed to defeat the respondent's right of pre-emption. The petitioners also claimed a sum of Rs. 7,020 as incidental charges and Rs. 30,000 for improvements made in the land.

3. On the pleadings of the parties the trial Court framed the following issues:-- URDU PARAGRAPH 4229 The respondent plaintiff produced PW 1 Ghulam Muhammad and PW 2 Muhammad Ramzan in support of his case. He also produced pedigree-tables (Ex. Pl and P2), copies of register Haqdaran in support of this case. On the other hand the petitioners produced 5 witnesses (DWI to DW5) and himself appeared as DW6 in the case. He produced Register Haqdaran (Ex D1), Khasra girdawari (Ex D2), receipt of District Council's fee (Ex-D3) for a sum of Rs. 1,62(1 and statements of net profits (Exs D4 and 135) in evidence. In rebuttal the respondent produced PW3 Muhammad Sharif, PW4 Ghulam Muhammad and PW2 Amir Khan.

4. Before adverting to the merits of the case it may be mentioned that Amir Khan's name was deleted by the trial Court vide order dated 21-5-1985 from the array of the plaintiffs. After going through the evidence of the parties the learned Civil Judge, Lodhran, decreed the suit vide judgment and decree dated 8-7-1985, subject to payment of Rs. 1,08,000 plus Rs. 1,620 paid on account of District Council's fee. The petitioners challenged the judgment and decree of the trial Court in the Court of District Judge, Multan. It was entrusted to the learned Addl. District Judge, Multan, who accepted the appeal vide his judgment and decree dated 4-1-1987. The appellate Court allowed Rs. 10,000 for improvements and Rs. 4320 for the purchase of stamps paper. Thus the respondent was required to pay an additional amount of Rs. 14,320.

5. The learned counsel for the petitioners contended that issue No.1 was wrongly framed in the negative form and its onus placed on the petitioners. He submitted that the pedigree-tables do not connect the vendors with Ghulam Muhammad pre-emptor. He further submitted that issue No. 7 relating to estoppel was wrongly decided by the Courts below. He placed reliance on Nasir Ahmad v. Arshad (PLD 1984 SC 403). Lastly he submitted that the petitioners had also paid a sum of Rs. 10,080 as registration fee and were entitled to get the same as well. On the other hand Malik Noor Muhammad, Advocate contended that no prejudice was caused to the respondent by the negative form of issue No. 1 or placement of onus on him. Moreover, the petitioners did not object to placement of onus on them. He further submitted that the Courts below had given concurrent findings on issue No. 7 and no interference was called by this Court in exercise of revisional jurisdiction. However, he did not seriously oppose payment of Rs. 10,080 to the petitioners on account of the registration fee.

6. I have considered the respective contentions of the learned counsel for the parties and gone through the record. It is true that the trial Court had erred in framing issue No. .l relating to the superior right of pre-emption in the negative form and wrongly placed its onus on the petitioners/defendants. However, this itself is not sufficient to undo the judgments and decrees of the Courts below. It appears that no objection was raised about the form or onus of issue No. 1 before the trial Court. At any rate, both the parties were conscious of the controversy involved and led their full evidence. There is nothing to show that any prejudice was caused to the petitioners by mere erroneous form of the issue or placemen of its onus on the petitioners. The Courts below have concurrently held that the respondent is a collateral of the vendor and has a superior right of pre-emption The appellate Court has found that the pedigree-tables Exs.Pl and P2 connect the respondents with the vendor as collateral. Zia Muhammad petitioner while appearing as DW 6 did not deny the respondent's relationship with the vendor but simply expressed lack of knowledge about it. I am therefore, not persuaded to upset the concurrent finding of fact on issue No.

1. As regards issue No. 7 agar the Courts below had arrived at a concurrent finding that respondent/pre-emptor was not estopped by his conduct to bring the suit. Arguments raised by the learned counsel in relation to the findings of the Courts below on issue No. 7 merely relate to appraisal of the evidence which is not the function of this Court in the exercise of the revisional jurisdiction. Suffice it to say that exceptional strong evidence is needed to defeat the right of pre-emption on the ground of estoppel or waiver. No such evidence is forthcoming on the file of the present case. As regards payment of Rs. 10,080 on account of registration fee there is no serious dispute between the parties. I am, therefore, inclined to modify the judgment and decree to the extent that apart from the amounts already mentioned in the impugned judgment and decree of the learned Addl. District judge, the respondent shall also pay a sum of Rs. 10,080 to the petitioners on account of the registration fee. Thus the petitioners shall be entitled to receive a sum of Rs. 1,08,000 as the price of the land, Rs. 14,320 on account of improvements of the land and payment for stamp paper and Rs. 10,080, paid as registration fee. The total sum payable by the respondent comes to Rs. 1,32,

400. The respondent shall pay the said amount less the amount already deposited by him with in a period of three months in the Court of Civil Judge, Lodhran.

7. With the above modification in the judgment and decree this revision petition is disposed of. H.B.T./Z-113/L Order accordingly.