1980 PLP 340 (SCMR)

MUHAMMAD AFZAL ZULLAH, J.‑These two petitions (C. Ps. 190 and 191 of 1979) call in question the judgment dated 3rd July, 1979 of the Lahore High Court whereby the respondents appeals arising out of peti tioners' suits for pre‑emption, were allowed and the suits were dismissed. The petitioner had based his claim to the superior right of pre‑emption on : (i) being a collateral of the vendors and (ii) being an owner in the patti estate. The learned trial Court as also the first appellate Court, relying on the oral evidence adduced by the petitioner held that he had superior right of pre‑emption. A learned Single Judge in the High Court observed that the pedigree‑table which could be obtained, was intentionally withheld by the petitioner‑the same was placed on the records of the appeals in the High Court by the respondents. It was also noticed that the petitioner did not produce the Jamabandi to show that he was the owner in the Patti/estate. The oral evidence in view of the above position, as analysed by the learned Judge, was not considered enough to dispel the inference deducible from petitioner's own conduct, in intentionally withholding the best available evidence. It was also conceded from the appellant side that in view of the ruling of this Court in Shah Nawaz and another v. Nawab Khan (PLD1976SC767) the oral evidence led by the petitioner on question of his relationship with the vendors was inadmissible on account of provisions contained in S. 32 (5) read with S. 50, Evidence Act. Learned counsel has taken us through the evidence which he thought could be a substitute for the documentary evidence. We do not agree with him. The pedigree‑table and the Jamabandi it is now admitted, were available at the relevant time. The burden of proof of the issue qua relationship and ownership in Patti/estate, was on the petitioner. The learned High Court has not committed any illegality, in the circumstances of this case in concluding that the documentary evidence was intentionally with held by the petitioner. We find that the presumption raised in this behalf was also unexceptionable. The reading of the oral evidence has not at all improved the petitioner's case. The assertions made by the petitioner and his witnesses, on oath were met with counter assertions made from the respon dents' side also on oath. The argument of the learned counsel that the petitioner's witnesses were not cross‑examined from the respondents on the vital questions, applies with reference to conduct on the petitioner's side. There was no cross‑examination by their counsel either, on the respondents' deposition on these very questions. We find no force in these petitions. They are accordingly dismissed. Petition dismissed.