1991 PLP 2091 (MLD)

Mian Sher Alam for Respondents. Dates of hearing: 15th and 18th May, 1991. This is a petition under section 115, Civil Procedure Code by the plaintiff and is directed against judgment and decree dated 28-4-1979 of learned Additional District Judge, Gujrat setting aside those of learned trial Court and dismissing the pre-emption suit. 2 kanals, 2 marlas of land at mauza Musa Kamala in Tehsil and District Gujrat was owned by Fazal Elahi. He sold it on 9-i1-1970 to Wali Dad and Qadar Dad for a sum of Rs.1,

100. Sale was made by a registered deed. Mst. Rasool Bibi as sister of the-vendor claimed pre-emption and filed a pre-emption suit against the vendees on 4-11-1971 in the Civil Court at Gujrat. Alongwith the vendees, vendor of the land was also impleaded as defendant No.1. Despite service of summons upon him, the vendor did not appear and allowed the trial Court ex parte against him. Vendees submitted a joint defence and contested pre-emption suit filed against them. They denied plaintiff's relationship to the vendor and also submitted that suit was barred by limitation. On 7-4-1973, the trial Court settled issues arising for decision in the suit. In support of the issues required to be proved by the plaintiff, she produced an extract from birth register Ext.P.1, copy of jamabandi for the year 1967-68 Ext.P.2, copy of shajra nasb Ext.P.3, copy of judgment Ext. P.4 and recorded her own statement as P.W.1. In her statement, she deposed that she was sister of Fazal Elahi vendor of the land. As against this, one of the defendants as D.W.1 deposed that plaintiff was not related to the vendor and produced copy of the plaint in the connected pre-emption suit Ext.D.1, extracts from birth register Exts.D.2 to D.4 and deposed that against the judgment Ext.P.4, an appeal has been filed. On 16-5-1975, the trial Court decreed the pre-emption suit in favour of Mst. Rasool Bibi. In appeal, decree passed by the trial Court was reversed by the lower appellate Court and the plaintiffs pre- emption suit was dismissed. It was held that evidence given was insufficient to prove the relationship set up in the plaint. Only material point requiring consideration in revision petition is about the plaintiffs relationship to the vendor. At the time of making statement in the trial Court, plaintiff was eighty years of age. She deposed that she was sister of Fazal Elahi. In support of her statement on point of relationship, an extract from birth register Ext.P.1 and copy of judgment in the connected pre-emption suit Ext.P.4 were put in evidence. In his statement as D.W.1, one of the defendants deposed that she was not related to the vendor. Extracts from birth register produced in evidence on behalf of defendants were neither relevant to the case nor helpful to its decision. As the judgment in the other pre-emption suit was set aside by the lower appellate Court, it was ruled out of consideration by it and other evidence, as said above, was considered insufficient. In the connected Civil Revision No.75 of 1980, decided simultaneously today, judgment Ext.P.5 has been restored and it has been held by this Court that on evidence led in that case, it was sufficiently proved that plaintiff was sister of the vendor. In this view of the matter, this revision like the connected civil revision is also bound to succeed. In view of the aforesaid, civil revision is allowed, impugned judgment and decree dated 28-4-1979 of learned Additional District Judge, Gujrat are set aside and those of learned trial Court restored with no order as to the costs of litigation in this Court. Records be returned. A.A./R-320/L Revision allowed.