1986 PLP 1025 (MLD)

Sh. Naveed Shahryar for Respondent No.2. Nemo for the Remaining Respondents. Date of hearing: 2nd April, 1986. This appeal is directed against the appellate decree passed by the learned Additional District Judge, Gujrat, on the 23rd February, 1978, recording dismissal of the suit of the appellant for possession by pre‑emption of 67 Kanals 18 Marlas of the land in dispute situate in the area of Kassoke, Tehsil and District Gujrat, after reversing the decree granted in his favour by the learned Civil Judge, Gujrat, ova the 2nd May, 1975. One Boota son of Gaman, sold the land in question to Hassan, respondent No.1, and Mutation No.4691 (copy Exh. p.5) was attested on the 28th October, 1967, in respect of the sale. Muhammad Hussain, respondent No.2, brought suit to pre‑empt the sale. On con fession of judgment by the vendee the suit was decreed: Respondent No.2 took possession of the land in execution of the decree after making payment of the purchase money amounting to Rs.16,000 which is beyond dispute.

2. Subsequently, Ahmad Din, the appellant asserting his superior right of pre‑emption, instituted suit for possession of the land. H alleged that he was an heir of the vendor and owned land in the estate where the suit land lay. It may be mentioned that respondent 2 also owns land in the estate though he is not related to the vendor. The suit was decreed by the learned trial Court which formed the view that the appellant was the son of Mst. Bhari who was father's brother's daughter of Boota and, therefore, enjoyed right of pre‑emption superior to that of the respondents who bore no relation to the vendor. The learned appellate Court below took the contrary view and holding that relationship of the appellant with the vendor as alleged, was not established dismissed the suit.

3. Admittedly, the appellant's mother's name is Mst. Bhari Viand Boota's father, Gaman, was the brother of one Fattu. According to the appellant Mst. Bhari was the daughter of the said Fattu which fact is given a lie. to by the respondents. The controversy is narrowed down to the point whether the appellant's mother, Mst. Bhari, was the daughter of Fattu. As the perusal of the entries of the register of deaths (copy Exh. P.7) indicates Mst. Bhari, who is described as wife of Jowaya (the appellant's father), died at village Kassoke at the age of 85 years on the 15th May, 1949. No official document mentioning Mst. Bhari as daughter of Fattu was placed on the record. The evidence on the crucial point consists of oral statements of witnesses produced by either side. Ali Akbar, attorney of the appellant (who was involved in a murder case and was in jail), P.W.1, Boota, vendor, P.W.3, Allah Ditta, P.W.4, bore testimony to the fact that the appellant's mother, Mst. Bhari, was the daughter of Fattu, who'was brother of Gaman, father of the vendor. Apart from examining himself, respondent 2 produced Malik Allah Rakha, D.W.1, Ghulam Rasul, D.W.2, Miran Bakhsh, D.W.5, residents of village Kassoke, to depose that the parents of the appellant's mother, Mst. Bhari, lived in village Dhilon and that she was not related to Boota. Mian Khan, D.W.7, and Abdul Ghani, D.W.8, resident of village Dhilon, who appeared as respondent 1's witnesses, stated that Mst. Bhari of their village was the wife of Allah Jowaya and that she had died at Kassoke. None of the aforesaid respondents' witnesses could tell, even when asked, 'the name of the father of Mst. Bhari. Also the respondents themselves did not disclose the name of Mst. Bhari's father. It is rather un-appeal-able to reason that these witnesses were unaware of the father's name of Mst. Bhari when they were giving details of her other relatives. Boota can no doubt be said to possess special knowledge of relationship with Mst. Bhari. Unlike the other witnesses of the parties Boota is not shown to bear any hostility towards anyone. His testimony deserves due weight and consideration. In the circumstances, Mst. Bhari could not but be accepted as the daughter of Fattu.

4. The process of reasoning adopted by the learned appellate Court below to upset the finding ‑of the learned trial Court to say the least is not sound. Low status in wordly life of Boots. and Allah Ditta ought not to have influenced the learned Court for altogether ignoring their testimoney. The non‑production of a copy of the pedigree‑table by the appellant was not so damaging to his case as has been thought of by the learned Court. The names of women‑folk do not figure in most of the old pedigree‑tables. I n all probability Mst. Bhari's name would not have found mention anywhere in the pedigree‑table.

5. In view of the above the appellant's relationship with the vendor is established and so is his superiority of right of pre‑emption. The appeal is accordingly accepted the impugned judgment and decree are set aside and a decree for possession of the land in dispute is passed in favour of the appellant and against the respondents and it is directed that the appellant shall pay into the trial Court Rs.16,000 for payment to respondent 2 on or before the 31st May, 1986, and on such payment being made respondent 2 shall deliver possession of the land in dispute to the appellant whose title thereto, shall be deemed to have accrued from the date of such payment, but that, if the aforesaid sum of Rs.16,000 is not so paid, the appellant's suit shall be dismissed with costs. The parties are left to bear their own costs throughout. S.A. Appeal accepted.