2007 PLP 1595 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This appeal with the leave of the Court, is directed against the judgment, dated 24-11-1999 passed by the Lahore High Court, Multan Bench, ,whereby Civil Revision No.413 of 1985 arising out a pre-emption suit in which decree, dated 5-6-1978 passed by the learned Trial Judge which was reversed by the learned Additional District Judge, Muzffargarh, in appeal vide judgment dated 16-6-1980, was dismissed.

2. The facts of the case in small compass, are that land measuring 101 Kanals and 15 Marlas situated in village Qasba Janubi Tehsil and District Muzzaffargarh was sold by Abdur Rashid and Abdul Ghafoor to the respondents vide Mutation No.449 dated 19-3-1973 for a consideration. of Rs.40,

000. The appellants claiming themselves collaterals of the vendors and also co-sharers in the Khata as well as owner it; the estate, filed a suit for possession through pre-emption. It was pleaded in the suit that land was sold for a consideration of Rs.8,000 but to defeat the right of pre-emption the sale price was shown as Rs.40,

000. The suit was contested by Karim Bakhsh vendee, the predecessor-in-interest of fhe respondents and learned Trial Judge in the light of the. pleadings of the parties and evidence brought by them on record having .held that appellants were collaterals of the vendor decreed the suit vide judgment dated 8-6-1978. The decree was however, reversed by' the learned Additional District Judge, Muzaffargarh in appeal filed by the respondents vide judgment dated 10-6-1980 which was further affirmed by the High Court by dismissing the civil revision filed by the pre-emptors and leave was granted in this appeal against the judgment of the High Court vide order; dated 9-10-2001 as under:-- "Leave to appeal is sought against Lahore High Court, Multan Bench Multan judgment, dated 24-11-1999, whereby petitioner's civil revision against the Appellate Court's judgment and decree reversing the findings of the trial Court was dismissed. (2) Petitioners filed a suit for possession through pre-emption in respect of land measuring 101 Kanals, 15 Marlas situated in Mauna Qasba Janubi, Tehsil and District Muzaffargarh, sold by Abdul Rashid and Abdul Ghafoor, in favour of the respondents vide Mutation No.449 dated 19-3-1973 for a consideration of Rs.40,

000. Petitioners claimed their right to pre-empt the transaction, on the basis of being collaterals of the vendors, co- sharers in the Khata and owners in the estate. The suit was seriously contested and ultimately .decreed by the trial. Court, holding that the petitioners were collaterals of the vendors. In appeal by the respondents., the learned Additional District Judge, Muzaffargarh, vide judgment and decree, dated 10-6-1980, dismissed the suit and allowed the first appeal. Dissatisfied, as they were, the petitioners filed a civil revision before the High Court, which was dismissed through the judgment impugned in this petition. (3) Mr. Gulzarin Kiani, learned Advocate Supreme Court for the petitioners vehemently criticized the judgments of the lower Appellate Court as also the High Court. According to him, Courts below did not consider the documents tendered in evidence and failed to appreciate oral as well as documentary evidence in its correct perspective. A grievance was made about an observation by the High Court that the petitioners had in fact abandoned their right of superior ownership by complete misreading and/or non-reading of the evidence. Learned counsel urged that First Appellate Court did not hold that the petitioners had abandoned their right of superior ownership. Moreover, apart from oral evidence claiming to be collaterals with the vendors, the petitioners had tendered in evidence pedigree-table to prove their relationship as well as Jamabandi entries supporting the case set up by them .that they were co-owners with- the -vendors in the lands and, thus, entitled to claim superior right of pre-emption. Learned counsel referred to seciton76 of the Evidence Act, 1872, sections 41, 42, 52 and 176 of the Punjab Land Revenue Act and Rules 31 and 36 of the Punjab Land Revenue Rules, 1968 in order to re-enforce in the Jamabandi Register kept by the Patwari of the Halqa which per se were sufficient to prove the ownership unless rebutted. He relied upon Khizrat Muhammad v. Ghulam Muhammad PLD 1962 (W.P.) Lah. 492 in this behalf. (4) Having heard Mr. Kiani at quite some length and the questions of law raised by him at the Bar as also having regard to the conflict of opinion between the trial Court and the Appellate Court as well as the High Court, we are inclined to grant leave to examine inter ilia the submissions made by the learned counsel. Leave to appeal is accordingly granted."

3. The learned counsel for the appellants in support of this appeal has contended that the plaintiffs in addition to their first right of purchase on the basis of superior qualification as collaterals of the vendor were also co-sharers in the Khata and owners in the estate, as was evident from the pedigree-table and the Jamabandi tendered in evidence but the Appellate Court as well as the High Court having misread this documentary evidence, have wrongly concluded that the. claim of the appellants to be the co-sharers in the Khala and also being collaterals of the vendor to have superior right of pre-emption was not supported by the evidence. Learned counsel however, without pressing the superior rights of pre-emption on the basis of relationship as collaterals of the vendor, has forcefully argued that the appellants being co-sharers in Khata, had superior right of pre-emption and were wrongly non-suited.

4. Learned counsel for the respondents on the other hand, has submitted that the appellants have neither been able to establish their relationship as collaterals of the vendors to claim superior -right of pre-emption nor they have been able to bring on record any cogent evidence in support of their assertion that they being co-sharers in Khata have , superior right of pre-emption and could maintain the suit on this ground alone.

5. The contention of the learned counsel for the appellants that the pre-emptors' were entitled to pre-emption decree on the basis of their superior right as co-sharers in the Khata was not substantiated on record. The proposition that the Jamabandi is part of Revenue Record and presumption of truth is attached with the Revenue Record is not disputed but the requirement of the law is that pre-emptor must prove his superior right by producing cogent and convincing evidence both oral and documentary failing which he must face the consequence of dismissal of suit. The mere tendering in evidence, the certified copies of Jamabandies is not sufficient to discharge the heavy burden of proving the superior right of pre-emption and thus, the Appellate Court has rightly formed the opinion on the basis available on record that pre-emptors have not been. able to prove their superior right of pre -emption and the High Court having affirmed this opinion in civil revision has committed no illegality.

6. We hiving perused the record with the help of learned counsel for the appellants have not been able to rind out any defect of misreading or non-reading of evidence to appreciate the contention of the learned. counsel that concurrent findings of the two Courts on the issue relating to the superior right of pre-emption was 'suffering from any legal or factual infirmity calling for interference of this Court. The appellants have not bothered to bring on record any other evidence except the Jamabandi to prove the claim of superior right of pre-emption being co-sharers in Khata. The appellants having made statements in affirmative have not claimed their superior right of pre-emption on the basis of their qualification. as co-sharer in Khata and consequently, the Appellate Court and also the High Court have rightly drawn an inference that the pre- emptors having not claimed superior right of pre-emption on the ground of being co-sharer in Khata in their statements have virtually abandoned their claims. This being so we do not feel it necessary to dilate upon the question regarding admissibility of the copy of Jamabandi tendered in evidence in the statement of counsel without its formal proof. This may be observed that the Jamabandi by itself in absence of any other evidence oral or documentary, may not be considered sufficient to prove the contents of the plaint and the superior right of pre-emption on the basis of relationship or co-sharers in the Khata. Learned counsel for the appellants has not been able to satisfy us that a pre-emptor by placing on record, the copies of the relevant record, without making the statements in support of his claim could succeed in the suit.

7. For the reasons given above, this' appeal fails and is accordingly dismissed with no order as to costs. S.A.K./A-44/SC Appeal dismissed.