1998 PLP 2054 (SCMR)

ZIA MAHMOOD MIRZA, J.

Petitioner seeks leave to appeal against the judgment of Peshawar High Court, Circuit Bench, Abbottabad dated 24-10-1994 dismissing his revision petition directed against the concurrent judgments of the two Courts below dismissing his suit.

2. Petitioner brought a suit for possession through pre-emption in respect of the land which it was alleged was sold by Mst. Taslim Bibi to Kala Khan respondent for a sum of Rs.10,000 but in order to defeat the superior pre emptive rights of the petitioner, the sale was given the colour of a gift. The suit was contended by the respondent which gave rise to as many as ten issues. Learned trial Court after taking the evidence adduced by the parties dismissed the petitioner's suit vide judgment dated 29-7-1989 holding that the transaction was a gift and not sale and, therefore, not pre-emptible. This finding was upheld by the Additional District Judge who dismissed the petitioner's appeal vide judgment dated 22-1-1991. Petitioner's revision petition, too, met no better fate and was dismissed by the High Court.

3. We have heard the learned counsel appearing in support of this petition. His main contention is that Mst. Taslim Bibi was not the wife of Kala Khan respondent and there was thus no reason for her to make a gift in his favour. According to the learned counsel, she had in fact sold the suit land to the respondent but the transaction was shown as a gift in order to frustrate the petitioner's superior right of pre-emption. We find no merit in these contentions. All the learned Courts including the High Court after appraising the evidence brought on the record have found that the suit land was gifted and not sold to the respondent. Learned counsel has not been able to point out any infirmity in this finding such as misreading of evidence or non-reading/non-consideration of any material evidence. On the contrary, we find that the learned Judge in the High Court has duly considered all the relevant evidence, oral as also documentary, and upheld the findings of the Courts below that P' Mst. Taslim Bibi had gifted the suit land to the respondent. It has been noted by the learned Judge that the petitioner's own witness Shafqat Zaman Patwari worked out the value of the suit land at Rs.11,86,014.19 according to rive years average (EXh.P.W.I/3) and Rs.25,93,007.84 as per one year average (EXII.P.W.1/5) and observed and rightly so that this evidence belied the testimony of P.Ws.5 and 6 who stated that the bargain was struck in their presence for a sum of Rs.10,000.

4. The matter, in our view, stands concluded by the findings of fact recorded by the Courts below after proper appraisal of the evidence which is not shown to suffer from any flaw or legal error. No case is, therefore, made out for interference by this Court. This petition is dismissed and the leave sought is refused. A.A./S-33/S Leave refused