1989 PLP 4227 (MLD)

This regular second appeal arises out of a suit for possession filed by Painda Khan respondent against the appellants seeking to pre-empt the sale of land measuring 49 kanals 11 marlas situate in mauza Pothi Rajan, Tehsil Kharian District Gujrat, made by Muhammad Ashraf and others to the appellants for a sum of Rs. 3,

334. In the suit the superior right to acquire the land was claimed by the respondent /plaintiff as being a collateral of the vendors. This suit was decreed by the trial Court on 14th of March, 1981. The appeal filed by the appellants against this decree was dismissed by an Additional District Judge al Gujrat on 24th of June, 1984. Hence, this Second Appeal.

2. Mr. Naveed Shaharyar, the learned counsel for the appellants has challenged the findings of the two Courts below on issue No. 5 relating to superior right of pre-emption and has contended that the respondent has failed to prove that he was a collateral of the vendors. The learned counsel has vehemently argued that both the trial Court as also the lower appellate Court fell in error in holding that the plaintiff/respondent had a preferential right to acquire the property as against the appellant According to the learned counsel the pedigree- table (Ex.P.2) does not prove any relationship between the vendors and the pre- emptor.

3. In the plaint, the plaintiff/pre-emptor had claimed the superior right o pre-emption as against the respondent on the ground that he was a collateral (if the vendors. In the written statement tiled by the appellant this fact was not specifically denied but ignorance was shown about it. Order 8 rule 3 of the Code of Civil Procedure requires that the denial of any fact on the part of a defendant has to be specific. In Barkat Ullah v. Hand and others (PLD 1955 Lah. 350) it was held that the denial due to lack of knowledge does not amount to specifically B denying the fact stated. Even otherwise from the perusal of the evidence on the record it is evident that the. superior right of pre-emption of the respondent stood fully established. The plaintiff/respondent Painda Khan appearing as his own witness stated that the vendors were son and daughters of Mst. Roshnai who was daughter of Bagh Ali, brother of his father Burhan Ali. This statement was fully corroborated by Wallayat Khan who was examined as DW 1 by appellants themselves. Not only that the plaintiff was cross-examined about this aspect of the matter but significantly enough, one of the appellants Muhammad Nawaz who appeared as PW2 did not utter a single word m this behalf and did not deny the relationship which was alleged by the plaintiff/respondent. Even if, therefore, the C pedigree-table is kept out of consideration, the other evidence, is sufficient to sustain the finding concurrently recorded by the two Courts below. In this view of the matter there is no force in this appeal which is dismissed leaving the parties to bear their own costs. H.B.T./M-1506/L Appeal dismissed.