1986 PLP 1647 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑One Karam Dad since deceased and represented by his legal heirs, petitioners Nos. 1 to 4 Bashir Ahmad son of Allah Ditta (respondent No. 2) and Khuda Bakhsh, petitioner No. 4, set up a claim to pre‑empt a sale in respect of land measuring 11 Kanals and 11 Marlas, in favour of respondent No. 1 by Allah Ditta on the ground that they were the collaterals of the said vendor. The trial Court decreed the suit in favour of Karam Dad and Khuda Bakhsh. The first appeal filed by the vendee was also dismissed by the learned Additional District Judge, who affirmed the findings of the trial Court in favour of the pre‑emptors that they were the collaterals of the vendor. Thereupon the vendee challenged the decree in a second appeal and a learned Single Judge of the Lahore High Court accepted the, same and set aside the decree passed in favour of the pre‑emptors.

2. This petition for leave to appeal has been brought by the pre- emptors to challenge the judgment of the High Court in second appeal, dated 23rd April, 1979.

3. The case of the petitioners /pre‑emptors on the question of relationship with the vendor, was based upon the pedigree table Exh. P. /3 which was accepted by trial Court and the first appellate Court as sufficient proof that the pre‑emptors were collaterals of the vendor. However, the learned Judge in the High Court held that the finding recorded in favour of the petitioners/ pre‑emptors was the result of misreading of the evidence. The conclusion of the High Court is reflected from the following extract from the impugned judgment:‑ "The pedigree table when read ‑conjunctively with the statement of Bashir Ahmad, P.W. 1, leads one to the irresistible conclusion that the respondents /plaintiffs were not able to discharge the onus of proof of the issue in question and failed to establish their relationship with the vendor. It may be pointed out that unless the pedigree table had been linked by the plaintiffs with them and the vendor by evidence positive, the same by itself could not be of any assistance to the respondents /plaintiffs. The plaintiffs, therefore, had miserably failed to prove the issue and the findings by the Courts below holding that they had a superior pre‑emption right, clearly stand vitiated by misreading of the record and thus cannot be sustained."

4. In support of the petition learned counsel contended that the learned Judge in the High Court has misinterpreted and misread the evidence himself. He submitted that on the mutation attested in favour of Khuda Bakhsh and others on the death of Nabi Bakhsh (whose name appears in the pedigree table), Khuda Bakhsh was proved to be the son of said Nabi Bakhsh and, therefore, the pre‑emptors had established their link with the vendor as collaterals through their common ancestor Gheseeta. The High Court while repelling this contention observed that there was nothing on the record to show that Khuda Bakhsh is the son of the same Nabi Bakhsh whose name is mentioned in the pedigree table. It seems to us that the arguments advanced by the petitioners before us have received proper consideration by the learned Judge in the High Court and rejected in the light of the evidence on record This being a question of fact we are not inclined to upset the findings of the High Court by undertaking a fresh reappraisal of the evidence No question of law was raised in support of the petition.

5. In the result there is no merit in the this petition which is accordingly dismissed. M.I. Petition dismissed