2016 PLP 2055 (SCMR)

MIAN SAQIB NISAR, J.

The appellants are venders/ defendants in a suit for pre-emption filed by the respondent/plaintiff seeking enforcement of his pre-emptory right to the sale in favour of the appellants on account of the sold land being, inter alia, contiguous to that of the respondent. After recording of the evidence, the suit was decreed by the Trial Court, however, on appeal such decree was set aside. When the judgment of the Appellate Court was challenged in revisional jurisdiction of the High Court, the same was discarded and by restoring the judgment of the Trial Court the original decree has been sustained.

2. Learned counsel for the appellants argued that the respondent has failed to prove that the land of the respondent was contiguous to the land sold. In this regard it is submitted that the Aks Shajra has not been proved in accordance with law because the Patwari .who prepared the Aks Shajra did not appear and produce the said evidence, rather it was tendered in evidence through the statement of the counsel. To this an objection was raised by the appellants, but such objection was not decided by the Court. It is also argued that the appellants in categorical terms in paragraph 6 of the written statement had denied the superior right of pre-emption by stating "ghalat hai", however, the learned Revisional Court has taken this to be an admission on the part of the appellants on account that such denial is evasive in nature, therefore, in the facts and circumstances when the respondent failed to prove his superior right, the suit was liable to be dismissed as was done by the Appellate Court.

3. Heard. We have perused the statement of the counsel in whose testimony the document has been brought on the record as evidence, suffice it to say that there is no objection to the same, rather an objection has been taken to the documents so tendered as Ex.P-17 to Ex.P-19 whereas the Aks Shajra was Ex.P-13. Besides, it was a certified copy issued by the Patwari and if the appellants were of the view that the same was an incorrect copy they should have either summoned the Patwari concerned for the purposes of rebutting the document on the production of the correct copy of the Aks Shajra or after procuring the correct certified copy and tendered it in evidence so as to rebut the document, Ex.P-13, which has not been so done. Even while appearing as a witness the vendee/defendant has not denied the superior right of pre-emption in the examination in chief. The view set out by the learned Trial Court as also the Revisional Court is in consonance with the record. No case for interference has been made out. Dismissed accordingly. MWA/K-8/SC Appeal dismissed.