1979 PLP 412 (SCMR)

DORAB PATEL, J.‑The land in dispute in this petition , for leave is situated in Malakand and was owned by one Bahramand who sold it to the petitioner in October, 1975 for a sum Rs. 22,500 therefore, the respon dent filed a suit for pre‑emption in the Court of the Senior Civil Judge, Malakand at Batkhela. The pre‑emption was sought on the ground that the respondent was a co‑sharer, that his 1 and was contiguous to the land sold etc. The petitioner contested the suit and his claim was that his land was contiguous to the land in dispute in the suit. But he only examined himself in support of his contention that his land was contiguous to the land in dispute in the suit. The respondent on the other hand examined himself and two other witnesses to support his claim. In these circumstances, it is not surprising that the learned Senior Civil Judge decreed the respondent's suit for pre‑emption but he accepted as correct the sale price shown in the sale to the petitioner. As the petitioner was, however, aggrieved by the fact that the respondent had been allowed to pre‑empt the sale, he filed an appeal in the District Court, Malakand but as this appeal was dismissed, he filed a revision in the Peshawar High Court and as that revision was dismissed in limine on 13‑12‑1978, he has filed this petition for leave. Mr. Qureshi's only contention before us was that the Courts had erred in holding that the respondent's land was contiguous to the land in dispute in this petition and according to learned counsel, it was the petitioner's land which was contiguous to the land in dispute in this petition. But as the respondent's claim was supported, according to the Courts below, by the evidence of the respondent's witnesses, Mr. Qureshi's further submission was that the burden of proof was on the respondent, because he was the plaintiff in the trial Court, therefore, the respondent's suit had been decreed illegally because it was passed only on oral evidence. The submission assumes that a suit for pre‑emption cannot be decreed unless it is supported by documentary evidence such as for example Revenue Records. The submission is misconceived. No doubt, a plaintiff takes a risk in prosecuting a suit for pre‑emption for he does not produce evidence of Revenue Records but on our inquiries, we found that the petitioner also had taken the same risk. Here Mr. Qureshi, however, pointed out that the petitioner had produced the sale deed in his favour. Mr. Qureshi was, however, unable to show us how the sale deed corroborated the petitioner's claim that his land was contiguous to the land in dispute and not the respondent's land, therefore, it is clear that the case of both the parties rested solely on oral evidence and as the respondent's evidence was supported by that of two witnesses, the petitioner has totally failed to prove that there is any error of law in the concurrent findings of the Courts against him. It is true that learned counsel submitted, somewhat feebly that the evidence of the respondent's witnesses was discrepant but the depositions are not before us and this Court does not interfere with concurrent findings on a question of fact merely because a different view could have been taken on the evidence about a question of fact. Mr. Qureshi's only other submission was that the respondent's land was not contiguous to the land in dispute because it was separated from the land in dispute by a ravine which was not owned either by the respondent or by Bahramand. Now, the question whether the respondent's land was separated from the land in dispute by a ravine, is a question of fact, and when we enquired about the evidence on this question, learned counsel merely referred us to the observations in the order of the High Court dismissing the petitioner's revision. We have, therefore, examined this order and it would appear that the plea now advanced before us had been raised in the High Court but it was rejected on the short ground that "there was no question raised in the pleadings of the appellant that there was no land of the respondent contiguous to the block in northern side" Learned counsel critcised this observation but he had also to show that the petitioner's claim was supported by evidence and he was riot able to refer us to any evidence whatsoever in support of the plea that the respondent's land was separated from the land in dispute by a ravine. In order to overcome this difficulty, Mr. Qureshi informed us that the trial Court had appointed Commissioners to assess the value of the land and according to learned counsel, one of these Commissioners had stated in his report that the respondent's land was separated from the land in dispute by ravine. Learned counsel thought this was sufficient to prove an error of law in the concurrent findings of the three Courts against the petitioner. We regret our inability to accept this submission for more reasons than one. In the first place, the respondent had not accepted as correct the report upon which learned counsel relied. Secondly, the Commissioner who stated in his report that there was a ravine between the respondent's land and the land in dispute was not examined. Thirdly and this n is most important, learned counsel did not challenge the observation in the impugned order that Commissioner had been appointed "only to assess the market value of the suit land". In these circumstances, even if one' of the Commissioner's reports contains some observation about the allege 'd ravine, it does not help the petitioner's case at all. No other argument was advanced. The petition is without merit and is dismissed. Petition dismissed.