1989 PLP 1639 (SCMR)

Date of hearing: 18th April, 1989. USMAN ALI SHAH, J‑‑The appellants filed this direct appeal against the judgment of the Lahore High Court dated 16‑3‑1980, whereby, R.F.A.No. 1 63/BWP of the respondents against the judgment of Administrative Civil Judge. Bahawalpur dated 5‑12‑1902, arising out of a pre‑emption case, was accepted. Briefly stated the facts of the case arc that Muhammad Bashir Ahmad etc. respondents Nos.l‑3 herein had purchased agricultural land mearsuring 1219 kanals f marla situate Chishtian, from Mohammad Ismail and others respondents No. 4 to (sic) iicreiri, through a registered sale‑decd dated 23‑7‑1958 for a sale consideration o: Rs.73,140 vide Mutation No. 263 attested on 18‑12‑1958. It is also mentioned tha: 14/36 part of the suit land was purchased by respondents Nos. 1‑4 from certain other persons vide Mutation No. 227 dated 4‑5‑1956 and the said sale was prc emptcd by Maulavi Abdur Rehman and Mian Abdur Rehman. During the pendency of the suit respondents Nos.4‑14 sold the entire land including 1‑1/30 part in favour of Matdvi Abdur Rehman and Mian Abdur Rehman Maulvi Akhtar Ali (deceased) and his daughter Mst. Kalsum Bibi appellants herein pre‑empted the said sale on the ground of their being owners of the estate. They alleged in the plaint that the actual sale price; paid by the defcndcnts was Rs. 48,00 and the rest of the sale price was ficititiously shown in the mutation. The respondent in their written statement objected to the pre emptive rights of the appellants and pleaded that they had better right on account of their Icing collaterals of tile vendors. The vendces also claimed improvements worth Rs.01,055.50 in the land in dispute. On the pleadings of the parties the learned trial ,Judge framed contesting issues. After recording the evidence by the learned trial .Judge, it was found that 1‑I/36 part of the suit land being the subject matter of the Civil Suit No. 94 of 1960 filed by Maulvi Abdur Rehman and Mian Abdur Rehman was liable to be deducted from the decree and according to the `Jamabandi' (Ex.P2) and oral evidence in this regard, the pre‑emptors were the owners of tile estate and had the preferential right. The respondents failed to produce independent evidencec to prove that they were collaterals and have better rights than the appellants. The learned trial fudge accepted the pleadings of the plaintiffs/appellants and vide his judgment dated 5‑12‑1962 decreed the suit in their favour, for possession of tile hand in dispute by pre‑emption less the land which was subject‑matter of Civil Suit No. 94 of 19611. Maulvi Abdur Rehman etc. v. Muhammad Ismail etc. which has already been decreed in favour of the plaintiffs in the said case. The defendants/respondents filed appeal before the Lahore High Court, Bahawalpur Circuit, Bahawalpur. A learned Division Bench of the High Court which heard the appeal, accepted the same, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs/appellants, vide impugned judgment. Hence, this appeal as of right before this Court. We have heard the learned counsel for the parties and have gone through the judgments of the Courts below. The main question in this case which deserves consideration of this Court, is about the preferential rights of pre emption which the plaintiffs/;;hpellants claimed on the basis of their being owners of estate. In order to prove their right the plaintiffs/appellants produced Bashir Allmad (P.W.3) his attorney who produced a copy of Jamabandi (Ex.P.7) for the year 1956‑57 the contents of which show that the plaintiffs/appellants arc the owners of the land in village Murri Shauq Shah. In rebuttal Muhammad Shaft (D.W.2) and Muhammad Ismail (DW.3) vendees were examined along with Ch. Jalaluddin as attorney of defendcnts Nos. 12‑14 who stated that the vendees and vendors arc collaterals of each other from their common ancestor Mian Fateh Din. The trial Court did not believe the oral testimony of the defendants/vendees and were held stranger in the village. On appeal of the vendees/defendants before the High Court, the learned .Judges while believing the defendants evidence, dismissed the suit of the plaintiffs/appellants. We have gone through the relevant portion of the rival judgments and have heard the learned counsel for the plaintiffs/appellants who urged that the appellants have superior right of pre‑emption because of their being owners in the estate. He based his claim on the entries of Jamabandi (Ex.P.7) and the oral evidence to prove that the appellants are owners of land in village Murri Shauq Shah, in which the suit land is situated. On the other side beside the defendants/respondents, Ch. Jalal Din D.W.13 who deposed that the vendors and tile vendees were collaterals inter se and were connected together through Fateh Din as their common ancestor. The evidence was not given weight to particularly on the ground that no pedigree table was produced by the vendees in support of their contention. It is obvious from the record that the statement of Ch. Jalal Din, (D.W.13) who appeared as attorney of the vendees stated that the vendors Muhammad Shaft and others were collaterals of the vendees/respondents through Mian Fateh Din being their common ancestor has successfully explained that they previosly did not own any land, therefore, their pedigree table was not incorporated in the revenue record. The witness had undoubtedly given a plausible explanation, and the reason given by the trial Court on this issue was, therefore, left with no force. The statement of Ch.Jalal Din remained uncontradicted and was not discredited in the cross‑examination. Muliammad Shafi one of the vendors who appeared as (D.W.2) had emphatically stated that Ch.Jalal Din was his `Yak‑Jiddi' and similar is the statement of Muhammad Ismail (D.W.3).The statements of these witnesses remained unrequited. The plaintiffs/appellants themselves did not enter into the witness‑box to rebut the relationship of the vendees which they claimed with the vendors. Hence, under the circumstances we have no other alternative but to believe the statements of the vendees and vendors that Mian Fatch Din was their common ancestor. In view of the above discussion, we are of the opinion that the view taken by the learned Judges of the Division Bench of the High Court, on the facts of the case would appear to be correct. The result is that this appeal is found to be without merit and is dismissed with no order as to costs. M.A.K/A‑508/S Appeal dismissed.