2007 PLP 1020 (CLC)

MAULVI ANWARUL HAQ, J.

Vide Mutation No.3342 attested on 30-5-1992 the petitioner purchased the suit-land for a consideration of Rs.60,

000. The respondent claiming to be a Shafi Sharik, Jar and Khalit filed a suit for possession by pre-emption on 30-9-1992. The performance of Talbs was pleaded. The petitioners filed a written statement denying the said allegations. Issues were framed. Evidence of the parties was recorded. Vide judgment and decree dated 25-7-1993 the suit was dismissed by the learned trial Court. I may note here that the learned trial Court held that the respondent has no superior right of pre-emption and further that he has also not performed the Talbs. A first appeal was heard by learned District Judge, Lodhran, who found that the Talbs have been performed. He further found that the respondent owns Killa No.16/1 of Square No.164 vide Exh.P.5 and this land is adjacent to the suit-land comprising in Killas Nos.7, 8 and 15 of the same Square. The suit was accordingly decreed subject to deposit of the said amount vide judgment and decree dated 3-11-1994, this civil revision was admitted to regular hearing only with reference to the question of superior right of pre-emption.

2. Learned counsel for the petitioners contends that upon a reading of the Aks Masawi Exh.P.3, it cannot at all be said with certainty that the land belonging to the respondent lies adjacent to the land subject-matter of the sale. Learned counsel for the respondents, on the other hand, insists that it is the land belonging to his client in Killa No.16/1 of Square No.164 which is adjacent to the said Killa No.15 of the suit-land.

3. I have gone through the copies of the records in the light of the afore-noted submissions of the learned counsel for the parties. Now there is no dispute that according to the Register Haqdaran Zamin for the year 1988-89 (Exh.P.4) the suit-land has been sold from Killas Nos.7, 8 and 15 of Square No.164. Similarly, according to Exh.P.5 for the same year, Habib Ullah respondent is a co-sharer in land comprising, inter alia, Killas Nos.16/1 and 16/2 of Square No.164. Aks Masawi (Exh.P.3), of course, has been prepared on the basis of square or rectangle system. Now Killas Nos.7 and 8 are located in the same line and in the line below is Killa No.15. Now in the next line below there are three Killas bearing No.16. There is no evidence on record to determine as to which of Killa No.16 the respondent is an owner. Apart from this, as would be apparent from the entries in Exh.P.5, the particular Killa No.16 in Square No.164 stands divided into Killa No.16/2 measuring 19 Marlas which is a Ghair Mumkan Abadi and Killa No.16/1 measuring 6 Kanals, 9 Marlas which is Null Chahi. The exact location of Killa No.16/1 is also not decipherable in the said Masawi. To my mind, the matter could not have been decided without examining the original records and the concerned Patwari. The finding on issue No.1 pertaining to the superior right of pre-emption accordingly cannot be maintained on present record. The civil revision accordingly is allowed. The suit shall be deemed to be pending in the Court of learned Senior Civil Judge, Lodhran, before whom the parties shall appear on 30-5-2006. The learned Senior Civil Judge shall requisition the records of the suit. The original records pertaining to the documents Exh.P.5 as well as Exh.P.3 shall be summoned along with the concerned Patwari. Both the parties shall have a right to question the said witness with reference to the original record. After, thus, recording the said evidence and any other evidence which the parties wish to adduce for and against the Issue No.1 pertaining to the superior right of pre-emption, the learned Senior Civil Judge shall record a finding thereon and consequently decide the said suit. Needless to state that findings on all other issues stand confirmed. No orders as to costs. A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Lodhran. S.A.K./A-39/L Case remanded.