1991 PLP 1574 (CLC)

(c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑S. 100‑‑‑Punjab Pre‑emption Act (I of 1913), S.15‑‑‑Second appeal‑‑ Concurrent finding of Courts below that pre‑emptor was owner of estate, but that qualification was not possessed by vendees, based on evidence on record, could not be interfered with in second appeal. Sh. Abdul Mannan for Appellants. Ch. Muhammad Hassan for Respondent. Date of hearing: 12th February, 1991. This regular second appeal has arisen out of a suit relating to certain land sold by one Nazir Ahmad and three others in favour of appellants, Ali Muhammad and another. The said land was pre‑empted by the respondent, Mehnga by means of a suit. It was alleged by him that he was a collateral of the vendors and also owner of the estate but the appellants did not possess either of the said qualifications or any superior qualification and, therefore, he had a right of pre‑emption against them. The Senior Civil Judge who decided the suit found that the respondent had failed to establish that he was a collateral of the vendors. It was, however; held by the learned Senior Civil Judge that he had been able to prove that he was owner of the estate. It was, therefore, decided by the learned trial Court that the respondent had a superior right of pre‑emption and the suit was decreed. The appellants went in appeal before an Additional District Judge. View taken by the learned Additional District Judge was that it had been proved by the respondent that he was not only owner of the estate but also a collateral of the vendors. The first appeal, was, therefore, dismissed by the learned Additional District Judge. Feeling aggrieved by his judgment and decree, the appellants came up in second appeal to this Court.

2. It was contended by learned counsel for the appellants that the learned trial Court had not framed any specific issue with respect to the respondent's plea that he was an owner of the estate and, therefore, the suit could not be decreed on that ground. It was, however, not denied by him that in his plaint the said plea had been advanced by the respondent. The issue which was struck by the learned trial Court was with regard to the superiority of right of pre‑emption and this is 114 what is generally done in the pre‑emption cases. Separate issues are not framed' in respect of each and every qualification alleged by the pre‑emptor for claiming right of pre‑emption. I am, therefore, unable to agree with learned counsel for the appellants that the suit could not be decreed on the ground of ownership in the estate because no specific issue was framed in this regard.

3. Another argument raised by learned counsel for the appellants was that the appellants were also owners of the estate. There is no documentary evidence to support their plea. On the other hand, the respondent's averment in this behalf is supported by documentary evidence. The appellants made an application before the learned trial Court to produce additional evidence but the same was not allowed. Their attempt to produce additional evidence before the first Court of appeal met with the same fate.

4. It was pointed out by learned counsel for the respondent that the appellants did not file, alongwnth the written statement, any document showing that they were owners of the estate nor any such document was relied upon by them. It was at a belated stage that they thought of producing documentary evidence but they were not allowed to do so. If the appellants were guilty of vigilance in presenting their case carefully at the proper time, they are to blame for the consequences of their default. I am, therefore, not inclined to interfere with the orders of the two Courts below whereby permission was refused to the appellants to produce additional evidence.

5. As thing stand at present, there is documentary evidence to substantiate respondent's plea with regard to ownership of the estate, but there is no such evidence in support of the averment of the appellants in the matter. There is concurrent finding of the two Courts below that the respondent is the owner of the estate but this qualification is not possessed by the appellants. In view of their unanimous verdict regarding his ownership of the estate the respondent has a superior right of pre‑emption. Nothing has been pointed out to enable me to interfere with the said finding of the learned lower Courts. In this state of affairs there is hardly any need to examine the question whether the respondent is a collateral of the vendors on which divergent view has been expressed by the two Courts below.

6. As held above, the respondent has a superior right of pre‑emption. The learned lower Courts were, therefore, justified in awarding the disputed land to him in preference to the appellants. In this view of the matter, there is no force in the appeal. It is, accordingly, dismissed with costs. H.B.T./A‑1211/L Appeal dismissed.