2007 PLP 2602 (YLR)

JAWWAD S. KHAWAJA, J.

The petitioners-defendants impugn the appellate .judgment and decree dated 3-1-2002, whereby the decree of the learned trial Court dated 13-12-1997 was set aside and a declaratory suit filed by the respondents-plaintiffs was decreed.

2. The facts of this case are straightforward. The petitioner-defendants and the respondents plaintiffs jointly purchased land measuring 476 Kanals 5 Marlas vide registered sale-deed dated 3-10-1979.' Respondents Nos.11 and 12, namely, Feroze S/o Sardar and Ismail S/o Sohib filed a suit to pre-empt the sale asserting that they "were tenants and, therefore, had a superior right of pre-emption under Martial Law Regulations. This suit was decreed in appeal by the Additional Commissioner (Revenue), Sargodha Division, vide judgment dated 20-4-1982. It was held that Feroze was entitled to the land measuring 89 Kanals, 16 Marlas in Khasra No.893 while Ismail was entitled to Khasra No.894 measuring 68 Kanals, 9 Marlas. The decree was not assailed by the petitioners or by the respondents-plaintiffs and has, thus, attained finality,

3. On 31-1-1995, the respondent filed their declaratory suit out of which this petition has arisen. According to them, the entire land comprised in Khasra Nos.893 and 894 had to be taken from the laud of the petitioners-defendants because the above named Feroze and Ismail were tenants under the petitioners-defendants. This assertion was disputed by the petitioners. According to them, the sale-deed dated 3-10-1979 was made in favour of the petitioners and the respondents-plaintiffs jointly without distinction as to khasra numbers, respectively conveyed to the parties. As such, it was claimed that the portion of the land, which was not covered by the pre-emption decree, belonged to the petitioners and the respondents-plaintiffs jointly. This contention was accepted by the learned trial Court, which accordingly dismissed the suit of the respondents-plaintiffs. However, as noted above, the learned 'Additional District Judge has reversed the findings of the learned trial Court.

4. The controversy between the parties could easily have been resolved if the respondents-plaintiffs had produced the sale-deed dated 3-10-1979 to show that separate parcels of land with distinct Khasra numbers had been conveyed to the petitioners-defendants. This has not been done. Furthermore, there is no explanation as to why the sale-deed was not adduced in evidence by the respondents. According to learned counsel for the petitioners, even the sale-deed did not mention conveyed- of distinctive khasra numbers to the various vendees although the undivided share of the vendees in the property conveyed was included in the sale-deed.

5. In the foregoing circumstances, it is clear that the respondents-plaintiffs had tailed to prove their assertion that the laud in Khasra Nos.893 and 894, which was preempted by respondents Nos.11 and 12, belonged exclusively to the petitioners. The learned appellate Court unfortunately has not taken note of these material circumstances and has proceeded to base its judgment on extraneous considerations including an exhibited document placed on file by the respondents-plaintiffs purporting to be a copy of the sale-deed dated 3-10-1979. The appellate judgment, therefore, is not legally sustainable being result of non-reading of the evidence on record.

6. In view of the above discussion, this petition is allowed and, as a consequence, the decree of the learned trial Court dated 13-12-1997 is restored. S.A.K./G-33/L Revision accepted.