1980 PLP 278 (SCMR)

The suit property is stated to be a house. Mst. Shama. its owner filed an earlier suit against the father of the petitioners for its redemption as according to her the same was mortgaged with him. That suit was ultimately withdrawn on the basis of a compromise on 18th October 1967, the plaintiff had conceded that the property was in fact sold to the petitioners' predecessor‑in‑interest and that it was not a case of mortgage. The respondents who are brothers inter .se then filed a suit for pre‑emption on the assumption that the sale took place on the admission of the owner qua the sale and on the withdrawal of the suit. There had been three rounds of litigation involving two remand orders. In the last round the learned trial Judge decreed the suit. The first and second appeal filed by the present petitioners having been dismiss ed they have now moved this petition for leave to appeal. The learned counsel has raised the following three contentions in support of this petition :‑ (1) That the right of pre‑emption was claimed on ground of contiguity. According to the statement made by Sher Farzand plaintiff (respon dent No. 1) he owned the house contiguous to the suit property. And because Muhammad Afzal plaintiff (respondent No. 2) is not the owner of the contiguous house therefore, both the plaintiffs would, as has been put, "sink together." Hence they have not succeeded in establishing the right of pre‑emption ; (2) That under section 5 (c) of the N.‑W. F. P. Pre‑emption Act (XIV of 1950) the property being a house would be exempted from pre‑emption because the petitioners' predecessor‑in‑interest‑the vendee, satisfied the conditions specified in the said provision ; and (3) That the local Commissioner's report on the question of value of the property and the compensation for improvements made therein, has illegally been ignored. All the three questions raised from the petitioner's side stand conclud ed by findings of fact. Documentary evidence was relied upon by the learned trial Court as also the learned first appellate Court to come to a conclusion that both the plaintiffs‑respondents owned the property contiguous to the house in dispute. The argument of the learned counsel based on the statement of Sher Farzand that "he" owned the contiguous property is of no avail to the petitioners because as admitted by the learned counsel Sher Farzand clarified the positron in cross‑examination that the property was owned by "them" which word as held by the learned lower Courts included the other plaintiff as well. On the question of exemption also the argument raised by the learned counsel relates to the appreciation of evidence. According to him the copy of the entry in the Register maintained by the Excise and Taxation Department showing that the petitioners' predecessor‑in‑interest owned another house, was a forgery. No evidence was led from the petitioners' side to establish that the copy was a forgery. It is admitted that the same was issued by the concerned Department and related to the register maintained by it. This item of evidence corroborated the statement made from the respondents' side to the effect that the petitioners owned another house. The approach of the High Court on the question of market value is unexceptionable. It has been found that `defendant himself admitted that actual price paid was Rs. 3,

200. That being so it was not necessary to examine the Commissioner's report with regard to the market value. As to the improvements alleged to have been made by the petitioners' father, suffice it to observe that the learned first appellate Court gave nearly half a dozen reasons for rejecting the petitioners' claim. No justification has been made out for interference with the findings of fact reached by the learned Courts below. This petition has no force and is accordingly dismissed. Petition dismissed.