1994 PLP 1776 (SCMR)

ABDUL QADEER CHAUDHRY, J.‑‑‑Leave to appeal has been sought against the judgment of the High Court dated 6‑5‑1991.

2. The facts, in brief, are that Ghulam Muhammad brought a suit for pre‑emption on 14‑2‑1981 in respect of sale made on 19‑2‑1980, under Paragraph 25(3)(d) of Martial Law Regulation No.

115. Ghulam Muhammad died shortly thereafter. He was survived by three sons, four daughters and a widow. An inheritance mutation was attested in favour of three sons, namely, Noor Makhmad, Noor Muhammad and Gul Muhammad. After the death of Ghulam Muhammad, Noor Muhammad got himself substituted as legal representative of the deceased Ghulam Muhammad in the suit. The Collector on 17‑2‑1983 dismissed the suit filed by the predecessor‑in‑interest of respondent No.

1. Noor Muhammad filed an appeal before the Additional Commissioner who accepted it on 1‑9‑1983 and remanded the case for a fresh decision. The Collector on remand by means of judgment dated 26‑3‑1984 decreed the suit in respect of Khasra Nos. 4963 and 4904 measuring 86 Kanals 4 Marlas in favour of respondent No.

1. Two appeals, one by the petitioners and the other by the rival pre‑emptors‑respondents Nos. 2 to 7, were filed which were disposed of by the Additional Commissioner, Rawalpindi, on 18‑7‑1984. The petitioners' appeal to the extent of Khasra No. 4904 was accepted. However the decree in favour of respondent No. 1 in respect of Khasra No. 4903 measuring 45 Kanals, 2 Marlas was maintained.

3. Two revision petitions, one by the respondent No. 1 and the other by the present petitioners, were filed. The revision of respondent No. 1 was accepted by the Board of Revenue on 23‑10‑1985. It was held that he was entitled to the pre‑emption decree for the entire tenancy in respect of Khasra Nos. 4903 and 4904. The decree passed in his favour by the Collector was restored. The revision filed by the petitioners was dismissed.

4. The petitioners challenged these orders in a Constitution Petition before the High Court. It was urged before the High Court that though the respondent No. 1 was the eldest son of Ghulam Muhammad, the original pre emptor, but he was not in cultivating possession of the suit land, therefore, no decree could be passed in his favour. The. High Court dismissed the petition and it was observed that "as the contention raised by the petitioner pertains to the realm of facts, it cannot be re‑opened in writ petition".

5. Learned counsel for the petitioners in support of this petition, has submitted that there is a misreading of evidence by all the Courts and the High Court erred in dismissing toe Constitution Petition. He submitted that the respondent No. 1 is not in cultivating possession of the suit land, therefore, no decree under Paragraph 25(3)(d) of the Land Reforms Regulation could be passed in his favour. The learned counsel submitted that Noor Muhammad, the second son, got himself substituted for Ghulam Muhammad but Noor Makhmad is the eldest son of Ghulam Muhammad as such there is a clear misreading of evidence. I Noor Makhmad, the eldest son of Ghulam Muhamma'd, appeared as P.W.2 and stated that, his name was Noor Muhammad alias Noor Makhmad. He also stated that he, was the eldest son of Ghulam Muhammad and cultivated the land. All the Courts have accepted his statement and it was held that he had cultivated the land and being the eldest son of the plaintiff, entitled to the decree passed in his favour. This is a finding of fact and P.W.3 also supported the statement of his elder brother and stated that it was Noor Makhmad who was cultivating the land.

6. In view of the above facts, no point of law needs adjudication by this Court. It is a basically question of fact which has been determined by all the forums against the petitioners. The petition is without any substance. The same is dismissed and leave to appeal is refused. AA./A‑1094/S Leave refused.