2009 PLP 140 (YLR)

KHALIL AHMAD, J.

Petitioner filed a suit for possession through pre-emption with regard to land measuring 21 Kanals 12 Marlas situated in Khata No.170, Acre No.18/1, 9 and 12, Square No.47, Mauza Wahga Klaika Tehsil and District Jhang.

2. The suit was contested by the respondent and the learned Civil Judge on the pleadings of the parties framed issues and after recording of evidence decreed the suit of the petitioner vide judgment, dated 11-9-2002 directing him to deposit the balance amount till 14-10-2002, failing which the suit shall stand dismissed. The respondent filed an appeal which was accepted by the learned Additional District Judge, vide judgment and decree, dated 15-1-2003 and suit of the petitioner was dismissed. Hence this petition.

3. Learned counsel for the petitioner has argued that the impugned judgment and decree of the learned Additional District Judge, is against law and facts and the findings are based on misreading and non-reading of record; that the reasons advanced by the learned Civil Judge has not been taken into account by the lower appellate Court. He has relied upon PLD 2001 SC 67, PLD 1969 SC 617, PLD 1985 SC 328, 1982 CLC 208 and 1979 CLC

838. He further argued that before the learned Additional District Judge, the point of Talabs was not raised and. as such findings of the learned Civil Judge on issue No.2 remained unchallenged and the only issue discussed before the learned Additional District Judge, was issue No.1 and that is with regard to superior right of pre-emption; that the petitioner is a co-owner in the khata and as such his suit was rightly decreed.

4. Learned counsel for the respondent on the other hand has fully supported the judgment of learned Additional District Judge, and has stated that petitioner has failed to prove superior right of pre-emption.

5. Arguments heard. Record perused.

6. The petitioner in order to prove his case produced Mopal Khan P.W. who is Patwari Halqa, Faqir Muhammad P. W.2. Shaukat Hayat P. W.

3. Saleem Akhtar P.W.4., Riasat Ali P.W.6 and himself appeared as P.W.S. and also produced in evidence Naqal Aks Shajra as Exh.P.1, photo copy of notice Exh.P-2, original envelope of registered A/D as Exh.P-3, return receipt as Ex.P-4, photocopy of register Haqdaran-e-Zameen for the year, 1995-96 as Exh.P-5, attested copy of Dakhil Kharij as Exh.P-7 and scheduled list of Unit as Exh.P-8.

7. Respondent himself appeared as D.W.1 and examined Khawaja Shaiq Hasan as D.W.2. Allah Ditta defendant again appeared as D. W.3 and in documentary evidence produced copy of register Haqdaran-e-Zameen for the year, 1995-96 as Ex.D-1.

8. The petitioner claims to be co-sharer and "Shariek khata", and has common ways and sources of water and his land is also contiguous to the disputed land. He produced Mopal Khan Patwari Halqa as P.W.1 who deposed that Naqal Aks Shajra Exh.P-1 is correct according to the record and bears his signature. He has stated in his cross-examination that in Exh.P-1, Acre No.1/2,2/1,9,12 and 18/1 of Square No.47 have been shown. In the said Exh.P-1, Jhang and Sargodha metalled road has been shown on the northern side of square No.47 which is common road passing by the disputed land as well as the land of the plaintiff. Acre Nos.18/19 and 12 of Square No.47 is the disputed land whereas Acre Nos.2/1 and 1/2 of Square No.47 is the land of the petitioner. The petitioner himself appeared as P.W.S. and stated that disputed land is irrigated by his own tubewell and prior to the purchase of disputed land he had no land in the village. In cross-examination D.W.2 stated that the disputed land is situated within the land of the petitioner. In cross-examination D.W.1 admitted that the petitioner's land is in Square No.47, Acre No.1/2 and 2/1 and that Killa No.9, 12 and 18 belong to him and also showed his ignorance that Aks Shajra is correct or not but admitted that the metalled road is common to his land as well as land of the petitioner and that both the lands are irrigated from the tube-well of Muhammad Ramzan, D.W.2 also admitted that Square No.47, Acre No.1/2 and Acre No.9 are joint. It is also admitted by him that both the lands are irrigated from the tube-well of Muhammad Ramzan.

9. Aks Shajra on record clearly mentions that the land of the petitioner is adjacent to the disputed land.

10. In this view of the matter, this revision petition is accepted and the judgment and decree of the learned Additional District Judge, is set aside and that of learned Civil Judge, dated 11-9-2002 is upheld. A.M.R./A-98/L Petition accepted.