2006SCMR1186 (PLP)

HAMID ALI MIRZA, J.

This civil petition. for leave to appeal is directed against judgment, dated 22-10-2003 in R.S.A. No.106-D of 1987 passed by the Lahore High Court, Multan Bench, Multan, whereby the said R.S.A. was dismissed maintaining the judgment and decrees dated 28-3-1979 and 14-6-1987 passed by Civil Judge and Additional District Judge, Pakpattan, respectively.

2. Briefly facts of the case are that the respondent/plaintiff filed suit for possession through pre-emption against the petitioners/defendants in the Court of Civil Judge, Pakpattan which suit was decreed vide judgment and decree, dated 28-3-1979. Appeal filed against the said judgment and decree was dismissed vide judgment, dated 14-6-1987 by the Additional District Judge, Pakpattan. R.S.A. No.106-D of 1987 filed by the petitioner was also dismissed maintaining the judgments and decrees passed by two Courts below.

3. We have heard learned counsel for the parties and perused the record.

4. Contention of learned counsel for the petitioners are (i) that the respondents/plaintiffs could not prove themselves to be collateral of the vendors and secondly that minor plaintiff during the pendency of suit attained majority, therefore, it was mandatory in view of Order XXXII, rule 12, C.P.C. for the respondents/plaintiffs to correct the title of the suit by making necessary amendment. Learned counsel has referred to pedigree table at page 106 of the paper book, copy of plaint at page 65, and written statement at page 74 in support of his arguments that the respondents were not collateral which fact could not be proved through the documents produced by them. Learned counsel for the respondents has referred to pedigree table Exh.P.3 at page 107 of the paper book and has also taken us through the statement of P.W. contending that name of P.W. is Said Muhammad while the addition of word "Rafiq" was inadvertently added. He submitted that evidence on record proved that the respondent/plaintiffs were collateral to vendor and no rebuttal evidence could be brought by the petitioner to disprove the evidence of the respondents/plaintiffs.

5. We do not find merit and substance in the contentions of the learned counsel for the petitioners.

6. Learned Civil Judge under Issue No. 1 has observed "Exh.P.3 (in two parts) a copy of the pedigree table exhibits that Jahangir Khan was real paternal-cousin of the plaintiffs father. He was son of Faiz Muhammad whereas plaintiffs father was born to Niaz Ahmad. Niaz Ahmad and Sultan Ahmad were real brothers being sons of one Sheikh Muhammad D.W.2 Jahangir vendor testified that the plaintiffs were son of his real paternal-cousin. Said Muhammad next friend of the plaintiffs reiterated this point as P.W. Muhammad Munawar one of the defendant vendees appearing as D.W.1 did not utter single word about it. ... The plaintiffs were required to prove that they were owners in land in the same village ... The plaintiffs have succeeded in establishing that they held better title to require the suit-land by way of pre-emption. The defendants have failed to oust them. Consequently, issue is held in the affirmative." The First Appellate Court under Issue No.l affirmed the finding of learned Civil Judge observing as under: "The pre-emptor claimed in para. No.4 of the plaint that their grandfather was a first cousin of the vendor., In the pedigree table mentioned in this para. the appellants admitted the name of their father and thus, showed Sultan Ahmad as their father who in fact was their grandfather. The learned counsel for the appellants argued that the evidence led was in contradiction to the pedigree table. This argument is without force because pre-emptor claimed that their grandfather was cousin of the vendor and this was the claim put forward by them and pedigree table was a just and explanation. The evidence led on this aspect supports the claim of the respondents. Exh.P.3. is the pedigree table. In this document the appellants are shown to be sons of Said Muhammad and Said Muhammad is shown to be son of Sultan Ahmad who is shown to be a collateral of Jahangir (son of Niaz Ahmad his real brother), the vendor. Thus, the appellants are proved to be related to the vendor by common ancestor Sheikh Muhammad. Said Muhammad, next friend of the pre-emptors appearing as P.W. 1 stated that Jahangir vendor was his first cousin while the pre-emptors were his sons. He was not subjected to cross-examination on this aspect. There is no evidence in rebuttal and the appellants did not claim any relationship with the vendor... In view of the above it is proved that the respondents-pre emptors were proved to be near collateral of the vendors and thus, are proved to have better right of pre-emption to the appellant. The learned trial Court rightly decided this issue in favour of the respondents." Learned Single Judge of the High Court also affirmed the finding of two Courts below in para.2 of the impugned judgment holding that the respondents/plaintiffs were collaterals of the vendor and had a superior right.

7. We do not find any legal or factual infirmity in arriving at the conclusion by learned single Judge of the High Court affirming the findings of two Courts below that the respondents/plaintiffs were collateral of the vendors and therefore, had superior right of pre-emption, consequently, there has neither been misreading nor non-reading of the evidence on record, hence no interference is called for by this Court in its constitutional jurisdiction.

8. So far the second contention that under Order XXXII, rule 12, C.P.C. minor plaintiffs who had attained that majority during the pendency of suit but the title memo. was not corrected or amended, consequently the impugned judgment cannot be sustained in law for want of non-compliance of mandatory provisions of law.

9. We do not find substance and merit in this contention as well. No prejudice has been shown to have been caused to the respondents/plaintiffs by not correcting or amending the title memo. of the plaint. The said minor respondents/plaintiffs have not objected to the impugned judgment which was in fact in their favour, as such they acquiesced to it while the petitioner has no locus standi to raise the said plea which being the right of minor respondents/plaintiffs to object to it, therefore, it would not affect the impugned judgment on merits consequently, the said contention has also no merit. No other plea has been raised.

10. In view of aforesaid reasons we find that learned Single Judge of the High Court has rightly affirmed the findings of two Courts below holding that the respondents were collateral of the vendors and further that no prejudice is caused to the minor plaintiffs by not amending the title memo of plaint as none of them raised objection as such acquiesced. In fact the petitioner has no locus standi to raise such plea as it was the right of minor respondents/plaintiffs only. In view of aforesaid reasons no case for grant of leave to appeal is made out, consequently same is declined and the petition is dismissed. H.B.T./M-43/SC Petition dismissed.