2006 PLP 750 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, ACTG. C.J.

This petition for leave to appeal has been filed against the judgment dated 9th February, 2004 passed by Lahore High Court, Lahore whereby R.S.A. filed by respondents has been allowed.

2. Precisely stating the facts of the case are that Mehdi Khan, etc. sold the land in dispute measuring 43 Kanals and 8 Marlas to the petitioners, vide registered sale-deed dated 22nd February, 1978. The respondents pre-empted the sale on the ground of being co-sharers and owners of the estate. The suit was contested by the petitioners primarily on the ground that they were tenants on the land in dispute at the time of sale. They also claimed improvements on the land in question to the tune of Rs.10,

000. Plea of estoppel was also raised. Learned trial Court framed issues arising out of the pleadings of the parties and after having gone through the evidence led by both the sides in support of their respective contentions, decreed the suit on 3rd February, 1985, with the findings that the respondents had superior right and petitioners had failed to establish that they were tenants on the land in dispute. Feeling aggrieved from the judgment/decree of the trial Court petitioners preferred appeal before the District Judge, who while holding that the petitioners were tenants on the land in dispute and respondents had waived their right of pre-emption, allowed the appeal vide judgment dated 27th November, 1985. Being dissatisfied from the judgment/decree of the Appellate Court, respondents preferred R.S.A. before the Lahore High Court, Lahore which has been allowed by means of impugned judgment. As such instant petition for leave to appeal has been filed.

3. Learned counsel at the very outset argued that suit filed by the respondents pre-emptor was barred by time. With his assistance, we have gone through the pleadings of the parties and noticed that in the written statements, petitioners had not raised the question of limitation and for such reason, no issue was framed by the learned trial Court in this behalf. Similarly petitioners failed to agitate this point before the Appellate and Revisional Courts, respectively, therefore, for the first time permission cannot be granted to petitioner's counsel to argue this point because on limitation, a right comes to vest in favour of other side.

4. Learned counsel next contended that the respondents have waived their right of pre-emption because the transaction between the petitioners and the vendor had taken place in their presence and at that time, they had not expressed their intention to claim pre-emption. It may be noted that learned trial Court has disposed of the question of waiver of right of pre-emption in the following terms: "The contention of the defendants is that plaintiffs were present at the time the negotiations for the sale in dispute took place and so they have waived their right of pre-emption. The sale in dispute was well within their knowledge. The onus of this issue was on the defendants who have produced their oral evidence in this connection. Although the witnesses, D.W.1, D.W.2 and D. W.3 have deposed that the plaintiff were present at the time of the sale of the suit-land, yet one of the important witnesses, Mehdi Khan, D.W.4 deposes that the plaintiffs were not present at the time of the sale in dispute. The witnesses D.W.1 and D.W.2 according to their own admission, had litigation with the plaintiffs and a case under sections 107/151 had also been registered against them by the plaintiffs. So it is not safe to rely on their evidence. Mehdi Khan D.W.4, is however, an important witness under the circumstances of the case. Above all he is a witness who was produced by the defendants to be examined. He has admitted in his examination-in-chief as D.W.4 that the plaintiffs were not present at the time of sale. No oral evidence can be more related their the evidence of D.W.4 in the present case. Relying on the statement of D.W.4 the issue is decided against defendants."

5. Learned counsel stated that despite of the fact that D.W.4 appeared on behalf of the petitioners, there is documentary evidence available on record to prove that the respondents-pre-emptors have waived their right of pre-emption, but when he was called upon to explain as to whether under any principle of law, the evidence furnished by D.W.4, who appeared on behalf of petitioners can be discarded, he answered that on this issue, learned Appellate Court had reversed the findings. A perusal of the judgment of the Appellate Court dated 27th November, 1985, indicates that the issue of waiver of right of pre-emption was settled in favour of petitioners without taking into consideration the effect of the statement of D.W.4, however, the learned High Court on having discussed his evidence has reversed the findings of the Appellate Court with regard to this aspect of the case, relating to waiver of right of pre-emption.

6. Learned counsel then contended that the petitioners themselves have a superior right in the property, therefore, the suit has been wrongly decreed in favour of respondents. It may be noted that the petitioners, to prove their ownership, produced Khasra Girdawri for the period commencing from 16th March, 1973 to 23rd October, 1973 (Exh.D.1.). As per its contents, petitioner No.2 Muhammad Sadiq one of the tenants cultivated the land, comprising of Khasra Nos.55 to

66. Similarly, petitioners relied upon the Khasra Girdawari pertaining to the years 1967-1969 (Exh.D.2), which also indicates that they have been cultivating Khasra Nos.12 to 15 and 18, which of course are other than the Khasra numbers subject-matter of the suit. Likewise, another document (Exh.D.4) was produced on their behalf that they are owner of the land in Khcwat No.15 and Khatooni No.16, whereas its perusal indicates that it was a mutation entry, attested in their favour, in respect of oral sale on 30th July, 1974, but subsequently, it was cancelled on 25th July, 1975. Thus, on account of such cancellation, the fact remains that they are not owners of any of the property in "Deh" nor they had succeeded in proving on the basis of any document that how they have got the superior right. Learned High Court had also attended to this aspect of the case and held that the petitioners have no preferential right than the respondents in respect of the property in dispute.

7. No other point was argued by the learned counsel for the petitioners. Thus, for the foregoing reasons, petition is dismissed and leave declined. M.H./N-51/SC??????????????????????????????????????????????????????????????????????????????????????????????????????????? Leave refused.