1994 PLP 1228 (SCMR)

ABDUL SHAKURUL SALAM, J.‑‑‑The vendees purchased land measuring 425 Kanals 13 Marlas in vaillage Lal Saggu, Tehsil Mailsi, District Vehari, for a sum of Rs.2,15,000 from one Mst. Imtiaz Begum on 30‑3‑1972. The appellants filed a suit for pre‑emption saying in para No.4 as under: The respondents replied to it be saying as under:‑ An issue was framed by the learned trial Court as follows: "Whether the plaintiffs have superior right of pre‑emption? OPP" The respondents contended that the appellants pre‑emptors had claimed to have superior right on the basis of co‑sharers and they cannot succeed on the basis of ownership in the estate. After referring to the pleadings and evidence of the parties, the learned trial Court came to the conclusion that "this shows that the right of pre‑emption was claimed to be preferential on the basis of share in the impugned Khewat and ownership in the estate. The documents on file i.e. Exh. P‑5 to Exh. P‑7 show that they are owners in the estate whereas vendees are admittedly strangers." The plea of the respondents that they were tenant was not found to have been proved at all. Holding the plaintiffs appellants to have superior right of pre‑emption, the suit was decreed by the learned trial Court on 27‑11‑1982. The respondents filed an appeal and the Addl. District Judge, Multan allowed the same on the ground that the plaintiffs/appellants having claimed the preferential right of pre‑emption on the basis of being co‑sharers in the Khata and that having not been so found, their suit on the basis of being owner in the estate could not be decreed. The appeal was accordingly allowed vide judgment and decree dated 4‑2‑1985. The appellants filed a second appeal in the Lahore High Court, Multan Bench, Multan. It was dismissed by a learned Judge for the same reason as prevailed with the learned first appellate Court. This is vide judgment and decree dated 31‑3‑1985. The appellants filed a civil revision for leave to appeal which was initially dismissed but on review the order was recalled and leave to appeal was granted vide order dated 31‑8‑1988.

2. In support of the appeal learned counsel for the appellants has contended that the appellants being indisputable owners in the estate and the respondents strangers, the appellants had clearly the preferential right to pre empt the sale. The plea urged by the respondents that they were the tenant of the land having been found not proved by all the three Courts below, the same has no substance.

3. Learned counsel for the respondents on the other hand has contended that the appellants had filed the suit on the basis that they were co‑owners in the Khewat and that having not been proved they could not be granted the decree on the basis of being owner in the estate and the two Courts below have rightly so held.

4. We heard the learned counsel for the parties at length. The issue was as to "whether the plaintiffs/appellants had a superior right of pre‑emption". The learned trial Court held that the documents on the file Exh.P‑5 to Exh.P‑7 show that they (the plaintiffs/appellants) are the owner in the estate whereas the vendees are admittedly strangers". Now if the appellants were owners in the estate and the respondents were strangers, the appellants had clearly the preferential right to pre‑empt the land, Judgments to the contrary by the two Courts below are set aside and that of the learned trial Court restored. The appeal is allowed. But in the circumstances the parties are left to bear their own costs. A.A‑/B‑234/S Appeal accepted.