P L D 2002 Lahore 159 (PLP)

(2) Whether the plaintiff waived his right of pre-emption? OPD. (3) Whether the plaintiff failed to make up the deficiency in the court fee in spite of getting the time for that purpose? OPD. (4) Whether the description of the suit-land is not given in the plaint? OPD. (5). Whether the suit is benami for the benefit of Atta Muhammad? OPD. (6) Whether the defendant made the improvements worth of on the suit-land? OPD. (7) Whether the plaintiff enjoys the superior right of pre-emption qua the defendant-vendee? OPP. (8) Whether the sum of Rs.7,500 was fixed in good faith and actually paid to the vendor? (9) If the above issue does not prove, what was the market value, of the suit-land at the time of-sale? O.P. Parties; (10) Whether the defendant is entitled to compensatory cost under section 35-A of the C.P.C ? OPD (11) Relief.

5. After recording evidence the learned trial Court found' that the appellant/ptaintiff had proved the superior right of pre-emption and after deciding the other issues against the respondent/defendant passed a decree for pre-eruption vide judgment and decree dated 30-4-1977 in favour of the appellant/plaintiff subject to toe payment of Rs.7,

500. The respondent preferred an appeal. Vide judgment and decree dated 20-11-1977, the appeal of the respondent was admitted and although; the case was remanded, the respondent still felt aggrieved by the opportunity of additional evidence which was given to the appellant/plaintiff and challenged the judgment dated 20-11-1977 in this Court: Vide judgment dated 17-2-1979, the said appeal was accepted, the order of remand dated 20-11-1977 passed by the learned First Appellate Court was set aside and the case was remanded to the learned First Appellate Court for its decision upon merits.

6. The learned First Appellate Court in post-remand proceedings evaluated the evidence on the record and came to the conclusion that the pre emptor did not enjoy a superior right of pre-emption qua the vendee and vide judgment and decree dated 5-3-1980, accepted the appeal of the vendee Abdul Aziz and set aside the judgment and decree dated 23-4-1977 passed by the learned trial Court in favour of Mian Khan.

7. In this regular second appeal, the learned counsel for the appellant has challenged the judgment and decree of the learned First Appellate Court on the ground that the appellant had successfully proved his superior right of pre-emption on both the grounds of being a collateral of the vendor as also as being co-sharer in the Khatta. His contention was that neither the pedigree table Exh.P.1 nor the copy of the Jamabandi for the year 1972-73 Exh.P.3 was correctly appreciated by the learned First Appellate Court. He submitted that according to the Exh.P.1 that Mian Khan appellant was able to prove being collateral with the vendor Allah Diwaya through the said pedigree table. As regards Exh.P.3, he stated that the ownership acquired by the vendee was only through the disputed sale mutation and that the respondent had failed to show his ownership in the estate or Khatta prior to the sale under pre-emption. He thus, prayed for the acceptance of this second appeal.

8. On the other hand learned counsel for the respondent has argued that the deficiency in the evidence of the appellant was proved by the judgment dated 20-11-1977 passed by the learned District Judge, by virtue of which, an opportunity to produce additional evidence was sought by the appellant to prove his relationship with the vendor which was initially granted. However, vide judgment dated 17-2-1979, the judgment dated 20-11-1977 was set aside in second appeal whereby the case was remanded to the learned First Appellate Court for decision afresh of the appeal itself. According to the learned counsel for the respondent, the appellant did not succeed in proving that he was collateral of the vendor Allah Diwaya by the production of Exh.P.1 alonge. He relied upon the cases of Ahmad and others v. Allah Diwaya and others 1998 SCMR 386; Rehman v. Noora through his Legal Heirs 1996 SCMR 300 and Muhammad Naeem and others' v. Ghulam Muhammad and others 1994 SCMR 559 to contend that pedigree-table alone in the absence of any other corroborative evidence was not sufficient to prove the relationship of the pre-emptor with the vendor. He argued that even on the face of it ERh.P.1 did not connect the appellant with the vendor as collateral. The learned counsel for the respondent challenged' the superior right of pre-emption of the appellant on the basis of Exh.P.3 which was the Jamabandi for the year 1972-73. According to his submission, the sale Mutation No.73 which was the subject-matter of the suit for pre-emption was admittedly attested on 29-10-1974. It was inexplicable as to how the entry in the earlier Jamabandi i.e. for the year 1972-73 could be based upon a subsequent sale which admittedly took place as late as 29-10-1974.

9. Arguments heard. Record perused,

10. Although, the appellant has placed on record the pedigree-table Exh. P. 1 yet by itself, without any other corroborative evidence satisfying the requirement of Article 64 of Qanun-e-Shahadat Order, 1984 Would not be A sufficient to prove that the appellant was the collateral of the vendor. The solitary statement of the appellant/plaintiff shall be wholly inadequate.

11. Insofor as the superior right of pre-emption of the appellant being co-owner in the estate/Khatta is concerned, suffice it to say that the respondent/vendee has been shown to have an equal qualification as shown in the Jamabandi for the year 1972-73. The learned counsel for the appellant has argued that this entry has been made on the basis of the sale in favour of the vendee which is the basis of the suit for pre-emption. According to him, the vendee/respondent was not such an owner before the sale in question. To support this contention, he has referred to an endorsement made on the back of the Jamabandi for the year 1972-73 which refers to Mutation No.73 dated 29-10-1973. This submission does not appear to have any force as the learned counsel for the appellant has not been able to satisfy this Court as to how a sale effected on 29-10-1974 could be incorporated in the Jamabandi of the year 1972-73. It is also noticed that the appellant himself was conscious of the deficiency in his evidence as he had sought an opportunity of producing additional evidence which was earlier granted to him vide judgment of the learned District Judge dated 20-11-1977. That opportunity, however, could not be availed in view of the judgment dated 17-2-1979 passed in second appeal which set aside the judgment dated 20-11-1977.

12. The upshot of the above discussion is that the appellant has not been able to prove his superior right of pre-emption qua the vendee on the basis of the evidence available on the record. The appreciation of the evidence by the learned First Appellate Court vide the impugned judgment and decree dated " 6-3-1980 is found to be unexceptionable. As a result, no case of interference has been made' out by the appellant. This regular second appeal has no force which is hereby dismissed. The parties to bear their own costs. Q.M.H./M.A.K./M-982/L Appeal dismissed.