1986 PLP 1567 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought from judgment, dated 12‑10‑1985 of the Lahore High Court; whereby a Civil Revision filed by the petitioner (vendee) which had arisen out of a pre‑emption suit filed by the respondent, was dismissed. The respondent's suit for pre‑emption regarding purchase of two Kanals of land by the petitioner was decreed by the learned trial Court on the ground that he had a superior right being a co‑sharer in the same Khatta from which the land in dispute was sold. The appeal and revision having been dismissed, he has now sought leave to appeal. The main contention raised by the learned counsel is the same as was advanced before the High Court, namely, that the petitioner on account of a purchase of 5 Marlas of land in the same Khatta in 1974 (the sale of land in favour of the petitioner which is the subject‑matter of the suit was in 1978) had an equal right of pre‑emption, therefore, this suit could not have been decreed in favour of the respondent. This alleged sale was treated as spurious by the learned Courts below. The observations made by the High Court in this behalf are as follows: ‑ "None. of the marginal witnesses appeared to prove Exh. D.3 (the sale‑deed relied upon by the petitioner). The land so stated was mutated in the name of the petitioner vide Mutation No. 1575, dated 5‑4‑1980. The document that was reduced into writing round .the year 1974 was not incorporated in the relevant record. The petitioner did not mention that deed in his written statement submitted on 19‑2‑1980 and also in his statement which was recorded by the learned trial Court before the framing of issues on 6‑3‑1980. The sale‑deed was not registered. In his opinion the sale‑deed Exh. D.3 was not in existence at the time of the impugned sale nor that was available at the time of the institution of the suit in the year 1979. There was no mention of the factum of the sale in the Roznamcha Waqiati in the year 1974. According to him the sale‑deed Exh. D.3 was procured after the institution of the suit and as there was no other evidence to show that the petitioner was an owner within the estate, therefore, the trial Court was justified in arriving at the conclusion that the respondent had a superior right of pre‑emption as against the petitioner." Learned counsel remained unable to meet the points noted in the above quotation. He in the alternative stated that there was another sale also in favour of the petitioner which could be pleaded against the respondent's suit for pre‑emption and that an application filed in this behalf for additional evidence before the appellate Court was not disposed of. This point was also raised before the High Court and was disposed of as follows:‑ "Nothing has been placed on the file of this case so as to show that the application (for additional evidence) was in fact pressed upon by the petitioner. The judgment is silent on the point so the presumption is that the above‑said application was not pressed before the learned Additional District Judge." Moreover, this plea was not taken before the trial Court and appears to be an afterthought like the other plea which was repelled by the High Court. None of the argument raised by the learned counsel has any force. This petition accordingly fails and, is dismissed. M. Y. H. Petition dismissed.