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Civil Petition No i32‑P of 1979, decided on 16th June, 1979.

(On appeal from the judgment and order dated 23‑5‑1979 of the Peshawar High Court at Peshawar in R. F. A. No. 275 of 1976).

-----Art. 185(3)‑Leave to appeal to Supreme Court‑Petitioner's appeal still pending adjudication on merits in High Court‑Entertainment of petition against interim order and. hearing of case piecemeal, held, not desirable‑Petition dismissed as incompetent with observation that petitioner would be at liberty to raise all or any of contentions raised in instant proceedings against judgment finally disposing of appeal in case of its being decided against him.

D. M. Kamil, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 16th June, 1979.

‑This is a petition for special leave from an order dated 23rd May, 1979 passed by the learned Chief Justice of the Peshawar High Court in a pending Regular First Appeal No. 275 of 1976.

The relevant facts in brief are that by means of a mutation No. 1389 attested on the 7th of September 1972, the land in dispute, measuring 32 kanals, 11 marlas comprised in Khatra No. 295, Khasra No. 69,69/1 and 469 was sold by Arbad Muhammad Ayub Khan to the petitioner, Haji Said Khan for Rs. 45,000. The respondents brought their suit to pre‑empt the sale claiming the superior right, inter alia, as co‑sharers. On the 3rd of November 1976, fir suit was d creed by the Senior Civil Judge Peshawar for pos session of the land by pre‑emption on payment of Rs. 45,000, on the finding that the plaintiffs were the co‑sharers in the stilt khata and as such had a superior right to acquire the land. In coming to this conclusion the High Court relied on the testimony of the Patwari Halqa Muhammad Younas (P. W. 1) and a copy of the record of right for 1964‑65 (Exh. P. W. 1/1). The witness deposed that the Khata in suit bearing No. 295 was solely owned by Ata Ullah Khan. Out of this he had already sold land bearing Khasra Nos. 272 and 277 to Aya Khan and Faizullah Khan respondents. From this evidence the learned trial Court concluded that plaintiffs were proved to be co‑sharers in the suit Khata and had a superior right to pre‑empt the sale.

The petitioner then went up in Regular First Appeal No. 275 of 1976. While this appeal was still pending, at the hearing on 23‑5‑1979, the learned Chief Justice passed the impugned order allowing additional evidence to be produced in the appeal at the instance of the plaintiff‑pre‑emptor.

In this connection it was argued before the learned Chief Justice on behalf of the plaintiffs‑respondents that the statement of the Patwari that plaintiffs‑pre‑emptors were co‑sharers in the disputed lands was correct for the reason that the land originally belonged to Arbab Sher Dit Khan and his brother Ibrahim Khan and that it was the latter who had sold his hissadari possession of Khasra Nos. 61/1, 73 and 472 to Khanimullah the predecessor in‑interest of Aya Khan plaintiff and Faizullah plaintiff himself. The learned counsel for the plaintiffs respondents relied on an uncertified copy of the misal Haqiat of 1928/29 Passed by him to support his contention. In this connection the learned Chief Justice observed in his impugned order that:‑--

"May be that after the death of Ibrahim Khan his property also passed on to Arbab Attaullah Khan asbas been the case upon the death of Sherdil Khan his son Sher Afzal Khan and the latter's brother Sher Ahmad Khan. But taking into consideration that Ibrahim had sold his hissadari, which I am told is in excess of his entitlement, to the plaintiff‑pre‑emptor, the entry of the name of Attaullah Khan in the column of ownership as sole‑sharer though justified by devolution through inheritance may not destroy the case of the plaintiff/pre‑emptor that they are still the co‑sharers in the khala on the basis of a sale by a previous co‑sharer.

In conclusion the learned Chief Justice was of the opinion that "so as to enable him to pronounce the judgment it will be necessary that the parties are given time to produce certified copies of such revenue record as they may wish as additional evidence".

Hence this petition for special leave from the order passed by the learned Chief Justice.

In this connection the learned counsel for the petitioner has pointed out that before the trial Court the plaintiff's were allowed full opportunity to ex amine P. W. I Muhammad Yonus Patwari as their own witness and they also relied on a copy of the, jamabandi for 1964‑65 (Exh. P. W. 1/1) produced by him. In these circumstances it was forcefully argued before us that the plaintiffs‑pre‑emptors could not bye allowed to set up .an altogether new and inconsistent case in the appeal in support of their claim which was essentially of a predatory nature against the bona fide vendee of the land. He submitted with considerable force that there is ample evidence already adduced by the Parties in the suit to enable the appellate Court to pronounce a satisfactory Judgment based on it, indeed the Court is not permitted to fill in a lacuna in the case of an adversary by resort to the provisions contained in rule 27 of Order XXXXI of the Code of Civil Procedure. This is especially so when there are no equities in favour of a pre‑emptor.

The learned counsel for the petitioner has also argued that apart from the above, the respondents have failed to comply with the decree passed by the trial Court for the deposit of the pre‑amption money. On 29‑11‑76 the High Court had suspended the order for the deposit for a fortnight only. In spite of this the respondents have failed to deposit the pre‑emption money so far and consequently their suit stands dismissed.

In our opinion these contentions require serious consideration. In spite of this we do not deem it to be a fit case for our interference at this stage. As stated above the appeal of the petitioner is still pending adjudication on the merits in the High Court. In the circumstances we are not persuaded to entertain this petition against the interim order and hear this case piecemeal. We, therefore, dismiss this petition as incompetent at this stage But needless to mention here, it shall be open to the petitioner to raise all of any of these contentions against the judgment finally disposing of the appeal in case it goes against him in the High Court.

Petition dismissed.

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