2008 PLP 1056 (SCMR)

IFTIKHAR MUHAMMAD CI'IAUDHRY, J.

This petition for leave to appeal has been filed against the judgment dated 3rd April, 2000 passed by the Lahore High Court, Multan Bench Multan whereby by R.S.A. filed by the petitioners has been dismissed.

2. Precisely stating facts of the case are that petitioners/plaintiffs filed a suit for pre-emption against respondent/defendant claiming therein preferential rights over the ,property, details whereof have been mentioned in the plaint, purchased by respondent/defendant for consideration of Rs.24,000 on account of being the owner of the Estate as well as co-sharer in the Khata. They asserted in the plaint that sale price was actually fixed and paid as Rs.12,000 but in order to defeat their right of pre-emption, an amount of Rs.24,000 was shown as price in the mutation. The suit was contested by the respondent/defendant by filing written statement. Learned trial Court framed issues arising out of the pleadings including the one i.e. issue No.2. Both the sides led evidence in support of their respective pleas. After hearing parties' counsel and having gone through the evidence available on record learned trial Court vide judgment dated 16th June, 1980 dismissed the suit, while holding that petitioners/plaintiffs have failed to establish their superior right of pre-emption. Petitioners/plaintiffs feeling dissatisfied preferred appeal before the District Judge who on 8th December, 1981 accepted the same and set aside the judgment of the trial Court and granted them decree for possession by pre-emption in respect of suit property on the basis of document Exh.D.3/2 i.e. gift deed. Feeling dissatisfied respondent/ defendant preferred R.S.A. before the Lahore High Court, Multan Bench which has been allowed vide impugned judgment. Operative para. Therefrom is reproduced hereinbelow:-- "In the light of aforesaid judgments, perusal of the evidence of the appellant, the donor and the gift deed (Exh.D.3/2) I am of the considered view that appellant was owner in the estate by virtue of Exh.D.3/2 before attestation of the sale mutation in his favour. The respondent-pre-emptors, therefore, have no preferential right quo him. The judgments relied by the learned counsel for the respondents are quite distinguishable inasmuch as they deal with the gift of the property in which the parties had some interest but here in the present case the respondents are stranger to the gift, therefore, these citations are not attracted in the present case." As a result whereof findings of learned Appellate Court were reversed and that of learned trial Court were restored. As such instant petition has been filed.

3. Petitioner's counsel contended that Hiba Nama (Exh.D.3/2) was got prepared subsequently by the defendant/respondent in order to deprive the petitioners/plaintiffs from their right of pre-emption. According to him essential ingredients of document Hiba Nama (Exh.D.3/2) have not been proved in accordance with law.

4. It is to be noted that Exh.D.3/2 was produced before the trial Court through Zafar Ali Khan (D.W.3) who has transferred four Marlas of land by means of gift to Syed Riaz Hussain Shah and in cross-examination not a single question was put to this witness, in respect of validity or otherwise of the document. Learned High Court on having taken into consideration the material available on record concluded that document Hiba Nama (Exh.D.3/2) was properly executed between Zafar Ali Khan and Syed Riaz Hussain Shah. In such view of the matter, in our considered opinion no case is made out for interference by this Court, in the impugned judgment.

5. No. other point was argued by the learned counsel for petitioner. Thus, for the, foregoing reasons we see no substance in this petition as such same is dismissed and leave declined. S.A.K./A-98/S Leave refused.