1990 PLP 633 (SCMR)

Ch.Mushtaq Ahmad Khan, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record for Petitioners. Nemo for Respondents. Date of hearing: 10th June, 1989. JAVID IOBAL, J.‑‑‑This petition for leave to appeal is directed against the judgment of the Lahore High Court, Lahore, dated 17th May, 1989 where)‑)N R.S.A. of the petitioners was dismissed. Briefly the facts are that a suit for possession through pre‑emption was filed by Muhammad Yousaf respondent against Muhammad Afzai predecessor- in‑interest of the petitioners. He claimed superior right of pre‑emption on 1hc basis of ownership in the estate. The suit was resisted by Muhammad Afzal vendee inter alia on the ground that Muhammad Yousaf respondent did not possess superior right of pre‑emption as against him as he himself was a collateral of the vendor Muhammad Naseeb. The trial Court dismissed the suit holding that Muhammad Afzal vendee was a collateral of the vendor and as such had superior pre‑emptive right as against Muhammad Yousaf respondent. On appeal the finding recorded by the trial Court was reversed by the Additional District Judge. Thereafter, the R.S.A. of the present petitioners as successors‑in‑interest of Muhammad Afzal vendee as stated above was dismissed by the High Court. Hence the present petition. It is submitted by learned counsel before us that the conclusion arrived at by the learned Judge was contrary to the provisions laid down in section 50 of the Evidence Act. He also placed reliance on 1986 S C M R 136(2) (Azizur Rahman and others v. Muhammad Nawaz). His argument is that so far as his, Shajra Nasb is concerned even if the report Ex.D.2/2 is considered in respect of the same, the said Muhammad Afzal vendee would be a collateral of Muhammad Naseeb vendor. In addition to that it was submitted that the oral evidence produced by him in support of his contention was sufficient to establish the claimed relationship. It was further submitted that the testimony of Muhammad Naseeb vendor as well as Muhammad Sharif should have been believed in this connection as they were family members and therefore had special means of knowledge of the claimed relationship. After hearing learned counsel we grant leave in this case to consider as to whether Muhammad Afzal vendee being predecessor‑in‑interest of the petitioners was a collateral of Muhammad Naseeb vendor in accordance with the test laid down by section 50 of the Evidence Act and that therefore he had superior pre‑emptive right as against Muhammad Yousaf respondent. Security to be deposited in the sum of Rs.5,

000. The appeal to be prepared on the present record with direction to the parties to file additional documents if any on which reliance may be placed. Learned counsel for the petitioners does not press the stay application but submits that he intends to move the executing Court for that purpose. A.A./H‑75/S Leave granted.