1968 SCMR 201 (PLP)

HAMOODUR RAHMAN, J.-This is a petition for special leave to appeal from the judgment of a Division Bench of the High Court of West Pakistan at Lahore dismissing a regular second appeal arising out of a suit for pre-emption. This suit was filed by the respondent Ismail and his minor brother Muhammad Hussain for pre-empting the purchase made by the petitioners from the first two respondents' brother Yasin. This suit was contested by the petitioners alone who admitted that the respondents had a superior right to pre-empt the sale but contended that the area actually sold by this transac tion was some 23 Kanals only and that the consideration mentioned in the document was not the correct amount. A reference to the plaint of the respondents shows that in the opening paragraph of their plaint they described the property sought to be pre-empted in detail by Khasra numbers and in paragraph 9 thereof mentioned that the area of these properties was 62 Canals and 10 Marlas. The defendants did n )t challenge by their written statement the correctness of either the datails of the Khasra numbers or of the area given in the plaint but contended by paragraph 5 of their written statement that since pre-emption was sought of only 61 Kanals the suit must fail, as partial pre-emption could not be allowed. The trial Court found that the land in suit was 62 Kanals ja area and that the consideration mentioned in the deed of sale Was correct. A decree was, accordingly, granted for possession of the land in suit described as measuring 62 Canals and 10 Marlas in area. On appeal before the District Judge it was urged that the suit was only for partial pre-emption, but since the vendees were not only found to have not denied the correctness of the area mentioned in the plaint but also to have admitted the same by a statement made by their counsel on the 22nd of February 1955, the Appeal was dismissed. In second appeal in the, High Court again this point was sought to be urged and a request was made to allow additional evidence to be brought on the record. The High Court did not concede to this request, since the evidence sought to be brought on the record was available to them even 11 years ago. Apart from this, the High Court upon the examination of the evidence came to the conclusion that even on merits there was no substance in the contention and that the area sold by Yasin was 62 Kanals and 10 Marlas, for which the decree had been rightly granted. Learned counsel appearing in support of the petition again seeks to re-agitate this question, but he cannot be allowed to do so now, since the determination of the exact extent of the area sold is a question of fact and it is now concluded by con current findings of all the Courts below. We see no substance, thereof, in this petition which, is, accordingly, dismissed.