988 PLP 683 (SCMR)

SAAD SAOOD JAN, J.‑‑The petitioner filed a pre‑emption suit in respect of the sale of agricultural land measuring 52 kanals and 4 marlas which was made by two brothers, namely Fazal Ali and Abdul Aziz, in favour of the respondents. The petitioner based his superior right on the assertion that he was the son of Fazal Ali and a nephew of Abdul Aziz. The trial Court dismissed the suit on the ground that he had not been able to establish his relationship with the two vendors. The petitioner filed an appeal before the Additional District Judge who reappraised the evidence and came to a contrary conclusion; accordingly, he accepted the appeal and remanded the suit for determination of purchase price. The respondents went in appeal before the High Court.

2. While the appeal was pending in the High Court, the respondents moved an application for the amendment of their written statement in order to take the plea that they were covered by a notification issued under section 8(2), Punjab Pre‑emption Act, by the Board of Revenue on 15‑9‑1965 which exempted certain sales made in favour of persons affected by the construction of Mangla Dam. It may be men tioned that the sale which was the subject‑matter of the pre‑emption suit was effected on 9‑1‑1964 and the suit was brought by the petitioner on 7‑1‑1965.

3. A learned Single Judge in the High Court re‑examined the evidence with regard to the relationship of the petitioner with the vendors and found that not only it was inadmissible under section 50, Evidence Act but also unconvincing. He further observed that he would have allowed the respondents to amend their written statement had the petitioner been able to establish his superior right accordingly, he accepted the appeal and restored the judgment and decree of the trial Court.

4. In support of this petition it is urged that the evidence produced by the petitioner to show his relationship with the vendors was provided by the relatives who were in a position to depose about the matter. None of the witnesses of the respondents, including one of the respon dent himself, cared to deny the said relationship. In the circumstances. the learned Single Judge was not right in discarding the testimony of the petitioner's witnesses as unconvincing. It was also contended that the learned Single Judge erred that in holding the said testimony was inadmissible under section 50 of the Evidence Act. Reference in this context was placed upon a judgment of the West Pakistan High Court reported as Haji Ilahi Bakhsh v. Mst.Nawab Bibi P L D 1966 Lahore

664. It is also contended that the notification issued during the pendency of the suit could not take away the right of pre‑emption which already stood vested in the petitioner. In support of this contention reliance is placed on a Division Bench judgment of the Lahore High Court reported as Sardar Mohinder Singh v. Arur Singh A I R 1922 Lahore 344.

5. The contentions raised on behalf of the petitioner need examination. Leave to appeal is granted. Security for costs in the sum of Rs.10,

000. The appeal may be made ready for hearing at an early date on the present record. Status quo with regard to possession to be maintained during the pendency of this appeal. M.I./Z‑25/S Leave granted