1993 PLP 820 (CLC)

Muhammad Aqil Mirza for Respondent. Date of hearing: 14th October, 1992. Land measuring 11 Kanals 3 Marlas is in dispute in the present case. It was mortgaged with some evacuee and in 1962 was added to the compensation pool. It was allotted to one Muhammad Ishaq on 24‑4‑1966 vide Mutation No. 1526. Muhammad Ishaq sold the land in question to the appellant. .This sale was pre‑empted by the respondent on 25‑4‑1967 through the suit out of which the present R.SA. has arisen.

2. The respondent asserted his superior right qua the land in question on three accounts: (i) he is collateral of the vendor Muhammad Ishaq, (ii) he is co‑sharer in the joint Khata, and (iii) he is owner in the estate. According to the respondent the appellant did not possess all these qualifications and, therefore, he had a superior right of pre‑emption. Written statement was filed and the issues arising out of the pleadings of the parties were settled.

3. On 3‑9‑1968 the learned trial Court held that the respondent was neither a co‑sharer nor a collateral of the vendor. However, it was found that he was owner in the Taraf Patti, therefore, had a superior right of pre‑emption. Accordingly, the suit was decreed on 3‑9‑1968.

4. The appeal filed by the appellant was dismissed by the learned Additional District Judge on 14‑10‑1968. Hence this R.SA. 5. 1 have heard the learned counsel for the parties and have gone through the record of the trial Court with their assistance.

6. The learned counsel for the appellant has urged that no doubt the respondent was owner in the village but on this score alone he could not assert his superior right to pre‑empt the land in question inasmuch as, the appellant too was established to be the owner in the village and, therefore, both of them being at par the suit of the respondent merited to be dismissed. Learned counsel has referred to Exh.P4 Aust Panj Sala inviting my attention to the entry at Serial No.4 which showed that the appellant purchased the land measuring 2 Kanals 11 Marlas on 9‑10‑1961. Learned counsel also referred to Exh.P3, copy of the Mutation No.1526, which contained an entry in the hand of, the Patwari that the appellant was owner in the village. He has also referred to the statement of Imam Din D.W.2 to assert that the appellant being a Lambardar as per statement of this witness was owner in the village inasmuch as, under the relevant law relating to the appointment of Lambardars some land must be owned by the Lambardar at all points of time during the tenure of his career.

7. This is true so far as it goes. However, this is not end of the matter.

8. There is a concurrent finding of fact by both the Courts below that the respondent enjoyed superior right of pre‑emption and till such time that the appellant is able to disprove this finding of fact by referring to cogent evidence, it is not possible for this Court to interfere with the said concurrent finding of fact in second appeal. To begin with, the entry in the Aust Panj Sala, per se, in my view, does not carry much evidentiary value. In case the appellant was really serious to establish that he had purchased some land from Mst. Zainab Bibi it was incumbent upon him to place on record copy of the sale‑deed but he has not done. As regards Exh. P3 i.e. mutation in question the entry in the hand of the Patwari to the effect that the appellant‑vendee was owner in the village cannot be accepted on its face value. It was the duty of the appellant to place on record a copy of the record of rights to show that prior to the sale in dispute he owned some land. The fact that Imam Din D.W.2 had deposed that the appellant was Lambardar and, therefore, by implication he should be held that he also owned some land in the village will not provide a sure basis to hold that the appellant in reality was owner in the village.

9. Be that as it may, I find force in the submission made by Mr. Muhammad Aqil Mirza, learned counsel for the respondent that respondent had a clear edge over the appellant in this matter inasmuch as, it is established on the record that not only he was owner in the estate but also a co‑sharer in the joint Khata. Learned counsel for the respondent is entitled to support the judgment and decree impugned in the present appeal even on the grounds which did not find favour with the lower Courts. Learned counsel has drawn my attention to Exh.D2 which is a copy of Register Haqdaran for the year 1965‑66 which shows that the respondent was a co‑sharer in Khata No‑

16. The land in question is also situate in the same Khata. (See para. 1 of the plaint as well as Exh.P3 copy of Mutation No.1526 relating to the impugned sale). Therefore, in my view, the two Courts below failed to attach importance to these documents which not only establish that the respondent was a co‑owner in the estate but also a co‑sharer in the Khata in which the land in question was situate.

10. Comparing the merits and demerits of both the parties qua their claims to the land in question, I find that the respondent has succeeded in proving that his rights qua the land in question are superior to those of the appellant, therefore, the spit had been rightly decreed.

11. There is no force in this appeal. It is dismissed. No costs. A.A./A‑239/L Appeal dismissed.