2004 PLP 86 (SCMR)

TANVIR AHMED KHAN, J.

Leave to appeal is sought against the judgment, dated 6-12-1999 passed by a learned Single Judge, of the Lahore High Court, Bahawalpur Bench, Bahawalpur, whereby he accepted R.S.A. No.36 of 1977 filed by respondents .and dismissed the suit for possession of the disputed property through pre-emption filed by the petitioners. The facts briefly narrated for the disposal of this petition are that the respondents purchased land measuring 101 Kanals, 19 Marlas situated at Mauza Wahid Bakhsh Mahar, Tehsil Sadiqabad; District Rahimyarkhan, through Mutation No. 1174, dated 29-3-1972 from Ali Muhammad. Predecessor-in-interest of the present petitioners filed a suit for possession claiming superior right of pre-emption on the ground of being owner in the village. The respondents controverted his claim and out of divergent pleadings of the parties, issues were framed. The parties led their evidence and the learned Civil Judge 1st Class, Sadiqabad, vide his judgment, dated 9-2-1976 decreed the suit. The respondents filed an appeal assailing the above judgment of the trial Court, which was dismissed by the learned District Judge, Rahimyarkhan, through his judgment, dated 17-7-1976. The respondents then preferred R.S.A. No.36 of 1977 before the Lahore High Court at Bahawalpur, which has been accepted by a learned Single Judge vide judgment, dated 8-12-1999, impugned herein. Hence, this petition for leave to appeal. Learned counsel for the respondents, at the every outset, has stated that Noor Ahmed, one of the vendees, has not been impleaded as a party, as such the present petition is not' maintainable as partial pre-emption cannot be allowed. He has also taken us through the evidence as well as other documents in this regard. Learned counsel for the petitioners has argued that the name of Noor Ahmed vendee from the array of respondents has been omitted on account of inadvertence. He has further argued that the learned Single Judge has reversed the concurrent findings on wrong premises without appreciating the evidence in its true perspective. We have considered the contentions advanced by the learned counsel for the parties and have perused the entire material placed on record with their assistance. We have noticed that the land in dispute was purchased by the respondents as far back as in 1972. Nearly 30 years have gone by. Admittedly, it has come in evidence and it has not been denied that most of the vendees have constructed their houses over the land in dispute and are putting up with their families over there. The learned Single Judge of the High Court has scanned the entire evidence brought on record and came to the conclusion that the respondents/defendants in their written statement had taken up the plea of either having equal qualification of being owners in the village or having superior right being collaterals of the vendors. He has pointed out that out of 12 defendants, the pre-emptor/plaintiff Rahim Bakhsh had admitted the equal right of being owners in estate of six defendants namely Noor Ahmed, Fazal Ahmed, Abdul Ghafoor, Muhammad Siddiq son of Khawaja, Muhammad Siddiq son of Ali Muhammad and Eidan son of Umar. The remaining defendants namely Rehmat Ali, Muhammad Shafi, Muhammad Isa, Khushi Muhammad, Bashir Ahmed and Nazir Ahmed were found to be collaterals of the vendor. Ali Muhammad. The learned Courts below totally excluded the evidence of D.W.1 Bashir Ahmed who had categorically stated that they were collaterals of Ali Muhammad vendor. His evidence read with pedigree-table (Exh.D.1) produced by the respondents /defendants brings us to an irresistible conclusion that the suit of the petitioners was dismissed by the learned Single Judge on sound and cogent reasons. It would be appropriate to reproduce his determination which is in the following terms:-- "In a suit for pre-emption it is plaintiff/pre-emptor who is to prove his superior right than a vendee/defendant in order to be able to obtain a favourable judgment and decree. In the present case the pre-emptor/plaintiff claimed himself to be owner in the Mauza whereas defendants in their written statement stated with precision their qualification either superior to the plaintiff as collaterals of the vendor or equal to the pre-emptor/plaintiff i.e. owner in the Mauza. In the statement made by him Rahim Bakhsh P.W.1 the plaintiff/pre-emptor admitted that except. Muhammad Shafi (defendant No.6), Muhammad Isa (defendant No.7), Rehmat Ali (defendant No.5), Bashir Ahmed (defendant No.9), Nazir Ahmed (defendant No.10) and Khushi Muhammad (defendant No.8) all other defendants were owners in the Mauza. It may be noted at this stage that Rehmat Ali defendant No.5 had conceded the claim of respondent/plaintiff. Thus the equal status of defendants Nos. 1 to 4 and 11 and 12 was admitted. It was now for the remaining defendants i.e. 5 to 10 to show whether they were collaterals of vendor Ali Muhammad. The pedigree-table produced by the defendants Exh.D.1 showed defendants Nos.9 and 10 Nazir Ahmed and Bashir Ahmed sons of Abdur Rehman, Muhammad Isa defendant No.7 son of Budda and Muhammad Shafi defendant No.6 son of A, limed as successors of Qasim. Ali Muhammad the vendor is son of Suleman who is also shown in the said pedigree-table as successor of Qasim. Bashir Ahmed one of the defendants D.W.1 had stated in clear terms that the vendor Ali Muhammad and the vendees named above were successors of Qasim. Through his statement he successfully connected themselves as collaterals of Ali Muhammad vendor which was consistent with their assertion in the written statement. The two Courts below have ignored the statement of Bashir Ahmed D.W.1 as also Exh.D.1 the pedigree-table. Their approach was clearly erroneous in fact and law as the said defendant/vendees were proved on record as collaterals of Ali Muhammad vendor." In this view of the matter, no exception can be taken to the determination of the learned Single Judge of the Lahore High Court that the petitioners have failed to make out a case of pre-emption on merits. Resultantly, for what has been stated above, the instant petition being without any force is dismissed and leave refused. S.A.K./S-229/S Leave refused.