1998 PLP 935 (SCMR)

ZIA, MAHMOOD MIRZA, J.

Suit for possession through pre-emption brought by the plaintiffs/respondents on the ground that they were the owners in the estate was decreed with costs by the trial Court holding that though some of the vendees were also owners in the estate but they having -joined with them some strangers in the sale which was indivisible were relegated to the position of the strangers by virtue of the principles of sinker and as such they could not compete with the plaintiffs who being the owners in the estate had superior right of pre-emption. It was further found by the trial Court that the sale was made for a sum of Rs.23,040 mentioned in the sale-deed. The judgment and decree of the trial Court was upheld by the learned Additional District Judge, who dismissed the petitioners' appeal vide judgment dated 8-4-1992. In revision filed by the petitioners in the High Court, the plaintiffs/respondents conceded that the sale was made for Rs.27,700 and the learned Judge also found, on perusal of the sale-deed, that the total amount of sale consideration was Rs.27,

700. Finding of the two Courts below on the issue of superior pre emptive right of the plaintiffs was also upheld by the learned Judge in the High Court, who held that though the share of each vendee was specified in the sale deed, the amount of sale price was shown to have been paid in lump sum and not to proportion to the share purchased by each vendee. Reliance for this view was placed on a judgment of this Court reported in PLD 1968 SC.

140. The learned Judge accordingly dismissed the petitioners' revision petition subject to the modification of the sale price, which -was held to, be Rs.27,

700. The plaintiffs/respondents were, thus, directed to pay a sum of Rs.4,660 to make up the deficiency within one month from the date of the judgment, failing which their suit shall stand dismissed. This was vide judgment dated 16-1-1994, which has been brought under challenge in this petition.

2. The learned counsel appearing in support of this petition has not been able to point out any infirmity in the concurrent findings of three learned Courts on the- issue of plaintiffs' superior right of pre-emption. He has, however, vehemently contended that although the respondents/plaintiffs were directed by the trial and the appellate Courts to deposit Rs.23,040, the pre-emption amount, they actually deposited Rs.21,000.50, which amount quite clearly fell short of Rs.2,039.50. Their suit was, therefore, liable to be dismissed.. The learned counsel has made a grievance that this point was specifically taken in the grounds of revision, but the learned Judge in the High Court has not attended to it. From the impugned judgment of the High Court, petitioners do not appear to have pressed this point at the time of hearing. Be that as it may, the objection raised by the learned counsel involves determination of a question of fact, namely, whether the respondents had deposited the pre-emption amount in accordance with the directions of the lower Appellate Court or not. Such a determination cannot be made by this Court at this stage as it entails a factual inquiry. Petitioners can more appropriately take this objection at the stage of execution of the impugned decree.

3. In the aforesaid view of the matter, no case is made out for interference by this Court. This petition is accordingly dismissed with the observation aforementioned. A.A./M-3338/S Leave refused.