1984 PLP 590 (CLC)

(a) Punjab Pre‑emption Act (I of 1913)‑ ‑‑‑ Ss. 4 & 21‑Pre‑emption suit‑Question of superior right of plaintiff over defendant‑No evidence on record for deciding question in favour of person claiming superior right‑Neither any copy of Khasra Girdawnri nor copy of any other revenue record placed on record to prove that such person was cultivating land as tenant‑Mere verbal statement that he was cultivating land cannot be accepted as a proof, to grant superior right of pre‑emp tion, in view of clear denial by other party that he was not cultivating land in question. (b) Punjab Pre‑emption Act (I of 1913)‑ ‑‑ Ss. 4 & 21‑Suit for right of pre‑emption‑Collusiveness of suit‑Assertion by father of plaintiff that suit shall not be with drawn even if oath on Qur'an is taken by respondent, held, amounted to declaration that suit could not be withdrawn with out consent and permission of father‑Silence of plaintiff at such juncture, clearly meant that he was allowing his father, to have his say in matter of pursuit of suit‑Father and son both pursuing suit, in circumstances, held further, amounted to collu siveness. ORDER The respondent purchased the suit land from his brother, father of petitioner, vide sale‑deed registered on 17th January, 1979. Petitioner filed a suit for pre‑emption. Following issues were framed :‑ (1) Whether the suit is collusive ? O.P.D. (2) Whether the plaintiff has got superior right of pre‑emption to that of the defendant? O.P.P. (3) Whether the plaintiff had waived his right to pre‑empt at the time of sale? O.P.D. (4) Whether sale amount of Rs. 3,000 was fixed in good faith or paid in fact? O.P.D. (5) Issue No. 4 failing the market value of the suit property on the date of sale. O.P.P. (6) Relief. All the issues were decided in favour of the petitioner and the suit was decreed by the learned Civil Judge, Mianwali, vide judgment and decree dated 11th May, 1981. On appeal filed by the respondent, the learned Additional District Judge, reversed the findings of the Civil Judge on Issues Nos. 1, 2 and 3 and dismissed the suit of the petitioner, vide judgment, dated 11th May, 1983. The petitioner has challenged the judgment of the learned Additional District Judge, Mianwali, by way of revision petition.

2. There is weight in the contention of the learned counsel, that there was no evidence on record, for deciding Issue No. 2 in favour of the respondent. Neither any copy of Khasra Girdawari nor copy of any other revenue record has been placed on record to prove that the respondent was cultivating the land as a tenant. Mere verbal statement that he was cultivating the land, cannot be accepted as a proof, to grant superior right of pre‑emption, in view of clear denial by the other party that he was not cultivating the land in question. The finding of the learned appellate Court on this issue is thus defective and is not maintainable.

3. However, judgment of the appellate Court regarding Issues Nos. 1 and 3 is not questionable .Zahuruddin (D. W. 1), whose presence at the time of the sale‑deed cannot be denied as he was an attesting witness, has stated that the plaintiff‑petitioner was present at the time the bargain was struck. The plea of the respondent that the suit for pre‑emption was got filed by father of the petitioner not only gets support from the state ment of D. W. 1 but also finds support from order, dated 28th July, 1980 of the learned Civil Judge. On that day when the suit had come up for hearing, respondent had pointed out that the suit was got filed by his brother, i. e. father of the petitioner, and that he was present outside the Court. This was denied by the petitioner. He stated that his father had gone away. Respondent was allowed to take peon/Qasid of the Court to bring Ahmad Khan, father of the petitioner, if he was available outside the Court. Ahmad Khan was found standing outside the Court and was produced before the Court. He denied all the pleas of the respondent and offered that the respondent should take oath on Qura'n. When the respondent agreed, Ahmad Khan stated that even if the respondent takes oath, the suit shall not be withdrawn. The actual words are :‑

4. From the evidence of the D. Ws. and from the contents of the order, dated 28th October, 1980 it becomes apparent that petitioner's father was pursuing the suit, while it is apparent from the statement of D. W. 1 that petitioner was present at the time of bargain. The assertion by the father of the petitioner that the suit shall not be withdrawn even if oath is taken by the respondent amounted to a declaration that the suit could not be withdrawn without his consent and permission. If there was no collusiveness, there was no occasion for the father of the petitioner to have stated that the suit will continue even if the respondent takes oath. The silence of the petitioner at that juncture, clearly meant that he was allowing his father, to have his say in the matter of pursuit of suit. The offer by the father of the petitioner to the respondent to take oath on Holy Qur'an was as authoritative as was the declaration that suit shall not be withdrawn even if oath is taken. These circumstances leave no room for doubt that the father and son both were pursuing the suit. The collusiveness thus was obvious. In the circumstances, there is nothing wrong in the findings of the learned appellate Court regarding Issues Nos. 1 and 3.

5. In view ‑of the fact that judgment of learned appellate Court is maintained on Issues Nos. 1 and 3, no interference in the order of acceptance of appeal is called for, as no case for interference by exercising revisional powers has been made out. The petition stands dismissed. M. Z. M. Petition dismissed.