1996SCMR300 (PLP)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑The land in dispute forming the subject‑matter of this appeal is situated in the revenue estate of village Vinoka, Tehsil Chiniot, District Jhang and was owned by Manak, Dosa, Muhammad, Ahmad sons of Wali and Mst. Phaphan who sold it to the appellant. The respondent pre‑empted the sale transaction and had based his claim to the superior right of pre‑emption, inter alia, on being collateral of the vendors. The learned Trial Court relying on the evidence on record held that the respondent had the superior right of pre‑emption. This finding was affirmed by a learned Additional District Judge in appeal. A learned Single Judge in the High Court who was seized of the revision petition partially allowed the relief holding that the respondent had been unable to substantiate his claim of being a collateral of Mst. Phaphan and non‑suited the respondent to the extent of the share of land sold by her but maintained the judgments of the two Courts below qua the remaining land.

2. Leave to appeal was granted by this Court to consider whether the respondent has been able to prove that he is related to the vendors on the basis of the pedigree‑tables Exhs. P.4 and P.5.

3. S.M. Tayyab, learned counsel for the appellant, contended that the Trial Court, the learned Appellate Court and the learned Judge in Chamber of the High Court had erred to hold that the pre‑emptor/respondent had been able to prove his relationship with the vendors on tendering in evidence a copy of pedigree‑tables through his counsel. In support of this proposition reliance has been placed on: (i) Muhammad Hussain and others v. Muhammad Khan (1989 SCMR 1026) and (ii) Muhammad Naeem and others v. Ghulam Muhammad and others (1994 SCMR 559). The ratio deducible from the aforesaid precedent is as under:‑‑ "There is no evidence that the pedigree‑table produced at the trial related to the appellants. One of the appellants appeared in the witness‑box. He did not even care to claim that he and the other pre emptors were in any way connected with Rahmat or that the pedigree table referred to his family. Had he made any such assertion the respondent would have had an opportunity to cross‑examine him on this point. The pedigree‑table was merely tendered in evidence at the close of the appellant's evidence by their counsel. In the circumstances, the view taken by the High Court and the Additional District Judge that there was nothing on the record to show that the pedigree‑table brought on record pertained to the appellants, was justified." This view was later on reiterated by this Court in the case of Muhammad Naeem and others (1994 SCMR 559).

4. Malik Allah Yar, learned counsel for the L.Rs. of the deceased -respondent, on the other hand, submitted with reference to the authority of this Court in Muhammad Hussain and others v. Muhammad Khan (1983 SCMR 16) that the pedigree‑table formed part of the record of rights to which a statutory presumption of correctness is attached and, therefore, the learned Single Judge in the High Court was correct to uphold the finding of the lower Courts that the respondent had successfully proved his relationship with the vendors on the basis of the entries in the pedigree‑table.

5. The learned counsel for the respondent has cited leave granting order dated 22‑6‑1982 on review of the order of this Court in C.P.S.L.A. No.548 of 1977 dated 20‑2‑1980 which was later on dismissed by this Court in the case reported as Muhammad Hussain and others v. Muhammad Khan (1989 SCMR 1026) supra.

6. The respondent had sought to prove in the Trial Court his relationship with the vendors by producing the pedigree‑table Exhs. P.4 and P.5 through his counsel. However, no one had appeared in the witness‑box either to testify to the correctness of the pedigree‑tables or to depose that they had a nexus with the respondent. The respondent while appearing before the learned Trial Judge simply asserted that he was `Yakjaddi' of the vendors. In his cross-examination, however, he was unable "to recite his pedigree‑tables" so as to prove his relationship with the vendors.

7. This Court in the two precedents cited by the learned counsel for the appellant had held that in the absence of any affirmative evidence on the relationship of the pre‑emptor with the vendors, the pedigree‑table, by itself, could not prove the factum of relationship of the former with the latter.

8. We would, therefore, accept this appeal, set aside the judgment of the High Court as also of the two Courts below and dismiss the suit of the respondent. Parties are, however, left to bear their own costs. A.A./R‑278/S Appeal accepted.