1988 PLP 692 (MLD)

On 24‑10‑1972 Hussain Bakhsh, the predecessor‑in‑interest of Muhammad Ramzan and 7 others, the respondents, filed suit for possession by pre‑emption against Ahmad Bakhsh and Amir Bakhsh, appellants/vendees defendants. The suit was contested whereon 4 issues were framed. The trial Court dismissed the suit on 2‑4‑1976. Feeling aggrieved by this judgment and decree Muhammad Ramzan and others filed appeal before the learned District Judge, Rahimyar Khan who accepted the same on 21‑9‑1976, hence this appeal.

2. Before me, the learned counsel for the appellants has challenged the finding of the appellate Court on issue No. 1 alone. The is as under:‑‑ "Whether the plaintiff has superior right of pre‑emption as against the defendants/vendees"? Learned counsel for the appellants submitted that the finding of the trial Court on issue No. 1 has been reversed by the learned Appellate Court without legal and factual justification inasmuch as the documentary evidence Ex. P.5 and Ex. D.1, the Jamabandis for the year 1970‑71 when read with pedigree‑table Ex. D.2, it is proved that the vendees/petitioners being sons of Muhammad s/o Pallu whose name is mentioned in the Khata, are equally co‑sharer and as such, the respondents'/plaintiffs' right of pre‑emption is not superior. The learned counsel also submitted that the learned Appellate Court has failed to appreciate the evidence in its true perspective. As against this, the learned counsel for the respondents/plaintiffs has defended the judgment of the appellate Court

3. I have considered the arguments advanced by the learned counsel for the parties and perused the record with care. I find that issue No. 1 is an issue of fact. The learned Appellate Court: was quite complaint to reverse the findings of the trial Court on this issue. The trial Court has given cogent reasons in support of the conclusions arrived at. The learned counsel has failed to point out any material misreading or non‑reading of the evidence by learned District Judge. The respondents/plaintiffs are admittedly the co‑sharer in the Khata. The question for determination, therefore is whether the petitioners /defendants have proved themselves to be co‑sharer in the same Khata so as to defeat the respondents/plaintiffs. The petitioners/defendants' case is that they are sons of one Muhammad s/o Pallu whose name appears in Jamabandis, Exh. P.1 to Exh. P.5 from the years 1958‑59 to the year 1970‑

71. To substantiate this claim, the learned counsel has relied on the documentary evidence Exhs. D. 1, D.2 and the oral evidence of Ahmad Bakhsh D.W. 1 (one of the petitioners/vendees). I, however, have not been able to persuade myself to agree with him. There is nothing on the record to show that Muhammad whose name is given in Exh. D. 1 or in the Jamabandis Exh. P.1 to P.5 has since died. Learned counsel stated before me that Muhammad, the father of the petitioners had died before the year 1933. Strangely enough, no mutation of inheritance in favour of the petitioners has been attested so far. This may give rise to the conclusion that Muhammad whose name appears in the Jambandis is still alive. As for the copy of pedigree table Exh. D.2. I find that appellants have failed to show through any oral evidence that they are the sons of same person whose name is given in the pedigree‑table. There is nothing on the record to show that pedigree‑table pertains to the family of the petitioners/defendants. Although Ahmad Bakhsh petitioner has appeared as D.W.1, yet he did not state that Muhammad his father was dead at the time of sale. The statement of Ghulam Haider D.W. 2 that; gives the impression as if Muhammad is alive. Otherwise he would have stated that" gives the impression as if Muhammad is alive. Otherwise he would have stated that "For all these reasons, I am convinced that the petitioners/defendants have failed to prove that they were co‑sharers in the Khata through inheritance. They have also failed to connect themselves with Muhammad s/c Pallu shown as a co‑sharer in the Khata. I find that Ahmad Bakhsh petitioner when examined as D.W. 1 has made the following statement:‑‑ Even in Jamabandi Exh. D.1 relied on by the petitioners/defendants, the entry in column No. 3 pertaining to the name of the owners is Muhammad son of Pallu, Caste Gasoora Haqdar shimlat Deh I am afraid a co‑sharer in Shamilat Deh any agricultural land and having only a house does not become a co‑sharer in the Khata for the purpose of pre‑emption.

4. For what has been stated above, there being no merit in the appeal, the same is dismissed, leaving the parties to bear their own costs. M.Y.H./2769/L