1999 PLP 1915 (SCMR)

(ii) that she was a participator in the amenities thereof and (iii) that she owned property in contiguity as provided by section 12, firstly, secondly and thirdly, of the N.-W.F.P.. Pre-emption Act (Act XIV of 1950), hereinafter described as the Act.(since repealed).

3. As the appellant failed to appear in the trial Court in spite of personal service, he was placed ex parte on 28-10-1984.

4. Pervaiz Hussain, special attorney of the per-emptor, P.W.4 appeared in the witness-box and stated that the disputed plot had been sold for Rs. 15,000 but exaggerated amount of Rs.35,000 had been entered in the registered sale deed with a view to warding-off right of pre-emption of respondent No.

1. He further asserted that pre-emptor was a participator. -in the amenities and appendages of the disputed property as also owned property lying contiguous to the one in dispute. He also denied that the appellant/vendee possessed any preferential right of pre-emption over the disputed plot.

5. The respondent s claim of superiority of her pre-emptive right rested on the ground that she owned property in contiguity to the disputed plot in the shape of a "Tall". The learned trial Court, as stated earlier, decreed the suit ex parte by its order dated 17-1-1985 on payment of Rs.60,000'

6. In appeal, before the learned Additional District Judge-111, Peshawar, the learned counsel for, the appellant had raised only two contentions, firstly, that the~ property in dispute was not pre-emptible inasmuch as, being a mini Sarai which was exempt from pre-emption under section 5 (a) of the Act and secondly that the amount of Rs.60,000 was paid and fixed in good faith as the sale consideration for the sale transaction which was completed through a registered sale-deed "but just on the statement of special attorney of the respondent pre emptor the suit was decreed on the payment of Rs.15,000." It would, thus, be noticed that the appellant had not challenged the claim of superiority of the pre emptive right asserted by respondent No. 1.

7. Feeling aggrieved, the appellant filed a revision petition before the High Court. It was contended before the learned Single Judge in the High Court that the appellant having not been served before the trial Court, ex parte decree passed against him is not sustainable in law. It was also urged that the judgment and decree passed by the learned trial Judge and duly upheld by the appellate Court was also not sustainable. It was further contended by the learned counsel for the appellant the respondent-pre-emptor has not been able to establish that she was an owner of the property lying contiguous to the disputed plot. The learned Single Judge repelled the first contention by holding that the summons issued to the appellant were duly served upon him; the report was supported by an affidavit of the Process Server; and that the appellant had put his signatures on the Court notice, Further, that the appellant had not taken up any ground to challenge the impugned ex parte decree in the grounds of revision. The learned Single Judge also noted that the appellant had not agitated this issue before the Appellate Court during the pendency "of the appeal and, thus, repelled the first contention. The learned Single Judge, however, held that respondent No. I had not only asserted in -the plaint that she owned her claim of property contiguous to the plot in dispute but her attorney had also made a statement in the trial Court on 26-1-1984 to urge that she was the owner of the contiguous property which was lying on the, eastern side of the property in dispute and further that both the properties had common passage.

8. The learned Single Judge, thus, upheld findings of the two Courts below that respondent No.1 was possessed of superior right of pre-emption on the ground that she owned property lying contiguous to the one in dispute, whereas the appellant had no such right.

9. Leave to appeal was, granted to the appellant in the paragraph that is reproduced hereunder:

"It was contended by the learned counsel for the petitioner that the judgments and decrees of the Courts below are based on no evidence as in the registered sale-deed placed on file to the East to the suit property is a thoroughfare and not,-the property of plaintiff/respondent as stated by the attorney of the plaintiff in his statement and that there is no other evidence whatsoever in proof of superior right of pre-emption of the plaintiff. Burden of proof heavily lies on her. Leave to appeal is granted to consider the above contention.

10. Mr. Muhammad Muntr Peracha, learned Counsel for the petitioner in support of this appeal, contends that the learned trial Judge has erred to ignore the fact that the appellant had remained co-sharer in the other half of the suit property which had not been pre-empted by respondent No. 1.

11. Mr. Saeed Baig, learned Advocate Supreme Court, representing respondent No. 1, submitted that the appellant's claim throughout had been that appellant had purchased the whole property vide registered sale-deed Nos.314, 315 and 317 but the property which was subject-matter of registered sale-deed No.316 was never pressed into service before any of the two Courts below and the learned High Court and, therefore, claim of the appellant that he remained co-;harer vide purchased portion of the disputed land through registered sale deed No.316 is not tenable. The learned counsel had further urged that the learned two Courts below have concurrently held that being an owner of contiguous property she had superior right of pre-emption which finding had been upheld by the learned High Court whereas the appellant had no such right.

12. After perusal of the record we find that the contentions raised on behalf of the appellant can hardly justify the reversal of concurrent findings of the two Courts -below duly affirmed by the learned High Court. The concurrent findings aforesaid are based on the correct appraisal of evidence made available on the record of the case. Even if another view was possible on the submissions made by the learned counsel for appellant, this would hardly provide justification to interfere in the findings concurrently arrived at by the learned two Courts below and affirmed by the learned High Court.

13. For these reasons, the appeal has no substance and it is accordingly dismissed with no order as to costs. H.B.T./R-46/S Appeal dismissed