P L D 1969 Peshawar 107 (PLP)

2. The defendant‑vendee while denying the superior right of pre‑emption of Mst. Zeenat Bibi and Ghulam Hussain urged that he had purchased the suit house for Rs. 5,000 which sum was fixed and paid in good faith. He averred that after purchasing the suit house, he demolished it and constructed a new house at the cost of Rs. 50,000‑60,000 and he was thus entitled to the recovery of the above‑mentioned amount. He lastly urged that the suit was barred by time. The two rival pre‑emptors also denied each others right of pre‑emption.

3. The following issues were framed :‑ (1) Whether the pre‑emptors have superior right of pre emption to that of the vendee‑defendant? (2) Which of the pre‑emptors has superior right of pre emption inter se? (3) Whether the sale price of the suit property at Rs. 5,000 was fixed in good faith or actually paid, if not, what is the market price of the suit property? (4) Whether the defendant has effected any construction on the suit property? If so to what extent and to what effect? (5) Whether the suits of the pre‑emptors are time‑barred? (6) Whether the pre‑emptors are estopped by bringing their suits by their word and conduct? (7) Whether the suit of Mst. Zeenat Bibi is for partial pre‑emption? (8) Whether the suit of Zeenat is for the interest of the vendee and what is its effect? Mst. Zeenat Bibi examined Pahlawan Shah vendor as a witness in support of her claim on 12‑6‑1966.

4. On the 14th of July 1966, Sheikh Karim Bakhsh learned counsel for Mst. Zeenat Bibi admitted that the house was re constructed by the vendee at the cost of Rs. 50,

000. The trial Judge relying upon the above‑mentioned statement and without examining Shah Ghulam Hussain petitioner regarding the valuation of the house by his order, dated 14‑7‑66, came to the conclusion that since one of the parties had valued the improve ment at Rs. 50,000 and the price of the house at Rs. 5,000 in these circumstances, the price of the house in the opinion of the learned trial Judge came to Rs. 55,000 and he directed the parties to pay court‑fee on Rs. 55,000 on or before the 29th of July 1966.

5. S. Usman Ali Shah, learned counsel for the petitioner while attacking the order of the Court below, urged that apart from the statement of Sheikh Karim Bakhsh, counsel for Mst. Zeenat Bibi rival pre‑emptor, there is no material on the record to show that the vendee had spent Rs. 50,000 on the con struction of the house. There is some force in the contention raised by the learned counsel for the petitioner, because the learned trial Judge did not bother to record the statement of the petitioner, regarding the valuation of the improvement, and nor any evidence was examined by him. The admission by Sheikh Karim Bakhsh, counsel for the rival pre‑emptor, admitting the valuation of the house at Rs. 50,000 is obviously not binding on the petitioner, who was not represented by him and who has an independent right of his own. It is clear that the finding of the learned trial Judge proceeds upon pure conjectures, has no basis and cannot be accepted as final with respect to the valuation of the improvement. In these circumstances, I accept this revision petition, set aside the order of the trial Judge and remand the case to him to proceed with it in accordance with law. Cost to follow the event. A. B./K. B. A. Petition accepted.