P L D 1973 Lahore 137 (PLP)

Sh. Ghias Muhammad for Respondents. Date of hearing : 12th October 1971. A. R. SHEIKH, J.‑Briefly stated the facts giving rise to this.. second appeal are that two suits, one by Mehr Kamir, the, appellant, and another by Wali Muhammad and Ghulam Akbar (respondents Nos. 1 and 2 respectively), were filed against Abdul Karim and three others, the vendees, for possession through pre‑emption of the suit land in the Court of the Administrative, Civil Judge, Jhang. Both the suits were consolidated and the rival pre‑emptors were impleaded as parties to either of the suits under the provisions of section 28 of the Punjab Pre‑emption Act, 1913. Mehr Kamir succeeded before the trial Judge, who finding him an heir of the vendors held that he had a superior right of pre‑emption and accordingly passed a decree in his favour conditional on payment of Rs. 8,000.00, the consideration mentioned in the sale deed and accepted by the parties to be the correct price. Wali Muhammad and Ghulam Akbar only preferred an appeal against the decree of the trial Court, which decree has been reversed by the learned Additional District Judge, Mang non‑suiting Mehr Kamir on the ground of collusion. It will not be out of place to mention here that the finding of the trial Court as to Mehr Kamir being an heir of the vendors and having a superior right as against the rival pre emptors, the owners in the estate, and the vendees was not contested before the learned Additional District Judge.

2. On behalf of Mehr Kamir, the appellant, the findings, of the learned Additional District Judge are assailed on the ground of misreading and it has been contended that the same are not binding in second appeal. Before reappraising the evidence with a view to finding whether there has been strict proof of the alleged collusion and that the suit had been brought for the benefit of the vendees or the object of the appellant was to really secure the land for the vandees, it is necessary to determine whether or not there has been any misreading of evidence. Learned counsel for the appellant has taken us through the judgment of the learned Additional District Judge on issue No. 4 and has pointed out that the evidence of Mehr Shah (P. W. 2), Ghulam Haider Shah (P. W. 3) and even that of Wali Muhammad as P. W. 4 nowhere mentions the presence of Mehr Kamir at the alleged meeting at the instance of the vendees that he (Meter Kamir) should persuade Wall Muhammad to withdraw his suit; otherwise a rival suit will be instituted at their instance for their benefit by Mehr Kamir. It was further pointed‑out that even the statement of Mehr Shah (P. W. 2) does not at all contain any suggestion, much less an assertion, that the vendees approached Wali Muhammad in the presence of Mehr Kamir to persuade him to withdraw his suit with the, further veiled threat that otherwise a rival suit would be instituted at their instance for their benefit by Mehr Kamir.

3. Learned counsel for the respondents does not contest the proposition of law propounded in Ashiq Ali Khan v. Shafi Ali Khan and others (A I R 1927 Lah. 872), and other authorities relied on by Maulvi Siraj‑ud‑Din Ahmad Paul, Advocate, learned counsel for the appellant, to the effect that it is necessary, before a pre‑emption suit can be defeated on grounds of waiver and collusion, to establish by the strictest evidence that the object of the plaintiff was really to secure the land for the vendee, and a desire to annoy and defeat a rival pre‑emptor is not sufficient. He, however, placed reliance on the observations in Pathana v. Mst. Wasai and another (P L D 1965 S C 134) and Abdul Majid and others v. Khalil Ahmad (P L D 1955 F C 38), in support of his argument that although the finding of the lower appellate Court as to collusion is not a concurrent finding, all the same it being a finding of fact is binding in second appeal. He maintained that if the evidence produced is capable of two interpretations and one view of that evidence has been taken by the lower appellate Court, the same cannot be ignored in second appeal and the factual aspects reappraised for the second time. He argued that the accompanying of Mehr Kamir is interpreted by the learned Additional District Judge as evidence of collusion for the further reason that if Wali Muhammad could have been persuaded to withdraw the suit, Meter Kamir would not have brought his suit and if the attempts at persuasion proved abortive, Meter Kamir would bring a suit, which is indicative of the fact that the suit by Meter Kamir was to be brought at the instance of the vendees to watch their interest and for their benefit. According to him, the discrepancies in the statements of the P. Ws. or in connections of the conclusions based on the conduct of Meter Kamir as visualized by the learned Additional District Judge cannot be canvassed before this Court. After going through the statements of the various P. Ws. we find that the same are discrepant as to the presence of Mohr Kamir and the day of the alleged meeting between the parties and there is not an iota of evidence to the effect that the threatened suit by Mehr Kamir was to be for the benefit of the vendees. There is considerable force in the argument of the learned counsel for the appellant that it is a case of misreading and the finding as to collusion is not conclusive in second appeal. The respondents' objection in this behalf is, therefore, repelled.

4. In Sheru v. Jawaidr Singh (58 P R 1912), while rejecting the argument put forward on behalf of the rival pre‑emptor that the suit had been brought in the interest of the defeated vendees and for their benefit, the learned Judges observed:‑ .. We have every sympathy with the difficult position in which the respondent, Jawahir Singh, is placed, as we have no doubt that it is the vendees, who have instigated Sheru to bring this suit and who are supplying him with the necessary funds to prosecute it. But it by no means follows that Sheru is a benami pre‑emptor simply because he is instigated by the vendees to pre‑empt the land and he would not have been able to bring His suit without their help . . . . ." Bearing the above principle in mind and having bestowed our careful consideration upon the facts we find that the grounds upon which the lower appellate Court has held the suit to be collusive are without substance and do not prove that the appellant pre‑emptor's suit is for the benefit of the vendees. The respondents having failed to establish by the strictest evidence that the appellant's object was really to secure the land for the vendees, we in disagreement with the lower appellate Court hold that collusion has not been proved. Since the appellant admittedly has a superior right of pre‑emption as compared with the respondents‑rival pre‑emptors, as also the vendees, we set aside the judgment and decree of the lower appellate Court and restore that of the trial Court. The appeal succeeds and is allowed. However, there will be no order as to costs. K.B. A. Appeal accepted.