1970 PLP 495 (SCMR)

WAHIDDUDIN AHMAD, J.‑The dispute between the parties is in respect of agricultural land measuring 12 kanals and 10 marlas situated in the area Wardag, Tehsil and District Attock, which was purchased by the petitioners from one Hayat Khan son of Taus Khan for Rs. 17,000 under a registered sale deed dated the 17th September 1960. Two civil suits for pre‑emption were instituted. One by Fazaldad and the other by Mst. Hassan Farooq, each claiming superior right on the basis of relationship with the vendor and on the allegation that the sale consideration was Rs. 8,

000. Mst. Hassan Farooq withdrew her suit on the 14th April 1962, which was dismissed. Thereupon, the suit of Fazal Dad alone was proceeded with. The learned Civil Judge, Campbellpur, by judgment dated the 19th May 1962, held that the respondents had a superior right of pre‑emption, that the actual payment of Rs. 17,000 has been proved. He further held that the suit was benami for the benefit of the vendor. In appeal, the learned Additional District Judge, by order dated the 9th February 1963, upheld the finding of the trial Court on issue No.

2. He further held that the respondents had no superior right of pre emption. This decision was challenged in the High Court of West Pakistan, Peshawar Bench, in Civil Revision No. 146 of 1963. A learned Single Judge of the High Court held that respondent Fazaldad was a collateral of the vendor and, therefore, had a superior right of pre‑emption. He further held that the suit was not collusive and was not brought benami for the benefit of the vendor. This decision is challenged in this petition for special leave to appeal. Mr. M. Younus Shah, learned counsel for the petitioner has contended that since the trial Court and the learned District Judge have held that the suit was benami for the benefit of the vendor, it being a finding of fact could not be interfered with in second appeal. The learned counsel for the petitioner, however, was unable to satisfy us that the view of the High Court that the finding of Courts below was based on no evidence is not correct. We have gone through the judgment of the High Court and are satisfied that High Court was perfectly justified in holding that there was no satisfactory proof that the suit brought by Fazaldad was for the benefit the vendor. Fazaldad is a distant, collateral of the vendor and, therefore, there can be no presumption that he brought the suit for the benefit of the vendor. The finding of the High Court is based on proper appreciation of the evidence. There is no force in the petition which is dismissed. Leave refused.