1989 PLP 237 (MLD)

‑‑‑Ss. 19 & 20‑‑Civil Procedure Code (V of 1908), S. 115‑‑Waiver‑‑Contention of vendee that his evidence with regard to waiver was not at all considered by Appellate Court below‑‑No such point having been taken in grounds of revision, same, held, could not be allowed to be introduced in course of arguments. Talat Farooq Sheikh for Petitioner. Ch. Abdul Rehman for Respondents. Date of hearing: 4th February, 1989. This revision petition arises from the judgment/decree dated 28‑6‑1988 passed by the learned District Judge, Kasur, whereby he decreed the respondent -pre‑emptor's suit on the qualification of Co‑sharer-ship.

2. The petitioner‑vendee challenged the finding on the ground that his evidence showing him to be the uterine brother of Boota was not at all discussed and that since the same sufficiently proved his such relationship with the vendor, he was as good a successor to him as was the respondent‑vendee in his capacity as a collateral.

3. I have gone through the entire evidence with the assistance of the counsel. In the written statement the petitioner‑vendee did not make any assertion if he was a uterine brother of the vendor. However, in oral evidence he tried to show that the vendor's mother Fatima daughter of Farida had subsequently married his ‑‑‑ father Chiragh. But his witness namely, D.W. 2 showed that the vendor‑Boota's mother was Fatima daughter of Wallah. Thus the petitioner's own evidence was contradictory. It did not find any support from any document and the oral version being not consistent was obviously not enough. The respondent pleaded that there were two ladies named Fatima, one being daughter of Wallah and the other being daughter of Farida. The difference coming from the petitioner's own witness in regard to their parentage was quite substantial. It could not, therefore, be said with certainty if the same Fatima was mother of the vendor Boota and the vendee Muhammad Din.

4. The qualification of the respondent being a co‑sharer was seriously challenged, but an unequivocal admission on the part of the petitioner in his testimony as D.W. 1 that he was a collateral of the vendor seems to clinch the matter against him. As a collateral he will be deemed to be his heir and assuming that he was not a co‑sharer, he was still entitled to pre‑empt the sale.

5. Lastly, it was argued that the evidence in regard to waiver was not at all considered by the lower appellate Court. No such point was taken up in the grounds of revision and, therefore, it may not be allowed to be introduced in the course of arguments. The revision petition is dismissed leaving the parties to bear their own costs. H.B.T./M‑1094/L Revision petition dismissed.