2002 PLP 445 (SCMR)

MUNIR A. SHEIKH, J.‑‑The petitioners seek leave to appeal against the judgment dated 16‑2‑1998 of the Lahore High Court through which the revision petition filed by the respondents‑pre‑emptors was accepted and the suit as a whole decreed.

2. The respondents filed a suit to pre‑empt the sale made in favour of the petitioners of the land measuring 304 Kanals, 15 Marlas for an amount of Rs.1,30,

000. It was contested by the petitioners‑vendees merely by denying the superior right of pre‑emption as alleged by the respondents‑plaintiffs. It was not pleaded in the written statement that the right of pre‑emption of the petitioners‑vendees was, superior qua the right of pre‑emption of the plaintiffs‑respondents on the ground that they were the tenants in the land before the sale was made. The trial Court on 25‑11‑1984 decreed the suit of the respondents‑plaintiffs. In appeal filed by the petitioners vendees before the learned Additional District Judge, Khushab, the suit of the respondents was partly dismissed to the extent of land measuring 102 Kanals, 15 Marlas over which the petitioners were held to be the tenants and the suit for the remaining land was decreed in their favour through judgment, dated 20‑3‑1985. The respondents filed second appeal before the High Court which has been accepted through the impugned judgment dated 16‑2‑1998 by holding that the petitioners did not in the evidence when they appeared as witnesses, claimed tenancy over any piece of the land whereas on the other hand, in the written statement, they pleaded that they were delivered possession of the land under the sale as owners thereof. Learned Judge of the High Court also held that in view of this evidence, the entries of Khasra Girdawari (Exh.D.2) produced by the petitioners to establish that they were tenants in the land could not be given any credit. Learned counsel for the petitioners on the strength of the judgments of the superior Court tried to argue that the entries in the Khasra Girdawari (Exh. D.2) in favour of the petitioners showing that they were tenants over some portion of the land could not be lightly interfered with. It may so, but entries in the Khasra Girdawari (Exh.D.2) according to law were rebuttable and in this case, strong evidence of unimpeachable character to rebut the same is available in the evidence of the petitioners themselves who stated both in the written statement and in the evidence that the possession of the land was delivered to them under the sale as owners. Even remotely, it was not stated that they were holding the land as tenants or any portion thereof, therefore, the learned Judge in Chamber of the High Court did not make any mistake by holding that he plea of tenancy raised by the petitioners through Exh.D.2 could not be given effect to, for the same had neither been raised in the written statement nor in the evidence when they appeared as their witnesses. The suit of the respondents was rightly decreed as a whole on the ground that they had superior right of pre‑emption.

3. The findings of facts recorded by the learned Judge of High Court do not suffer from any illegality such as misreading or non‑reading of any material piece of evidence, therefore, this petition has no merits which is accordingly dismissed and leave to appeal refused. Q.M.H./M.A.K./K‑38/S Petition dismissed.