1990SCMR1719 (PLP)

RUSTAM S. SIDHWA, J.‑‑‑This is an appeal by Ghulam Zakria appellant against the judgment of a learned Single Judge of the Peshawar High Court dated 10‑11‑1979 holding the appellant as having a superior right of pre emption over Sher Bahadur Khan respondent and accepting revision petition filed by the respondent and setting aside the judgment and decree of the learned District Judge and restoring that of the trial Judge.

2. The brief facts of the case are that Sher Bahadur Khan purchased 1/3rd share of Khata comprising Khasra No.1599 (4 Kanals and 9 Marlas), 1603 (5 Kanals and 10 Marlas) and 1604 (5 Kanals and 1 Maria) on the basis of Mutation No.657 entered on 17‑4‑1977. The petitioner, claiming superior right of pre emption as co‑sharer in the suit property, brought a suit to pre‑empt the sale against the vendee. The learned trial Judge dismissed the suit on 2‑3‑1978 on the basis inter alia that the vendee was tenant‑at‑will in the land in dispute much before the sale and therefore, the petitioner had no superior right of pre‑emption against him. The petitioner having preferred an appeal against the said judgment the learned District Judge, Kohat, by his judgment dated 14‑10‑1978, accepted the appeal and remanded the case back to the trial Court with the direction to provide an opportunity to the parties to produce evidence and to give a proper decision thereafter, according to the law and the evidence brought on record. The said decision was, motivated by the fact that there were no material on the record from which appropriate findings could be given as regards issues Nos. 6, 7 and 9 and the qucs1ion whether a superior right of pre‑emption could be claimed by the vendee in his position as defendant, required proper legal appraisal. Being aggrieved by the said decision the respondent preferred a revision petition before the Peshawar high Court, which held that the respondent had a superior right of pre‑emption order the present petitioner and accepted the revision petition, set aside the judgment and decree of the learned District Judge and restored that of the trial Court. The appellant now seeks to set aside the said decision.

3. On behalf of Ghulam Zakria appellant pre‑emptor it is submitted on the basis of the evidence of Pir Bakhsh Patwari P.W.I and Khasra Girdawari P.W.1/5 that Sher Bahadur Khan respondent is only a tenant of Khasra No.l604 and, on the basis of the decision given by this Court in Muhammad Ali's case 1989 SCMR 796 and Muhammad Arif's case 1981 SCMR 820 the appellant is entitled to receive 2/3rd share of the disputed land covered by the sale‑decd and the respondent vendee is entitled to receive 1/3rd of the area.

4. On behalf of the respondent it is submitted, on the basis of the decision of the trial Court, that the respondent was in possession of the total land covered by the disputed sale and is therefore, entitled to retain the total area.

5. We have given our anxious consideration to the arguments advanced by the learned counsel fear the appellant and the respondent and have also perused the record. The decisions of the trial Court on issues Nos.l and 8 do not fairly match the oral and documentary evidence on the record. The view expressed by the learned District Judge that issues Nos. 6, 7 and 9 call for a much better attention of the trial Judge, after fresh evidence is allowed to be recorded, is not without substance. Taking all circumstances into consideration, it would appear only fair and proper if the case is allowed to go back to the trial Court for a determination of the case afresh, after the parties are provided a proper opportunity to produce all such other evidence as they consider fit and proper.

6. For the foregoing reasons, this appeal is allowed and the decision of the learned Single Judge of the Peshawar High Court dated 10‑11‑1979 is set side and the order of the learned District Judge, Kohat, dated 14‑10‑1978 is restored, with the further direction that Issues Nos.1 and 8 also require determination afresh, after a proper opportunity is provided to the parties to produce such further evidence as they consider fit and proper in the said matter.

7. There shall be no order as to costs. A.A./G‑290/S Case remanded.