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Civil Petition No. 180 of 1980, heard on 26th February, 1980.

(On appeal from the judgment dated 10‑12‑79 of the Lahore High Court in R. S. A. No. 864 of 1979).

‑‑ Art. 185 (3)‑Petitioner reiterating same contentions regarding his superior right of pre-emption as raised by him before Additional District Judge and High Court‑Courts below giving reasons for not relying on petitioner's evidence and there being no ground to differ with view expressed by them‑Petitioner also failing to establish his claim of being an owner in village‑Petition dismissed.

Nathe Khan v. Rahmat Bibi P L D 1961 B J 96 ref.

Rana Muhammad Bashir Khan, Advocate Supreme Court and Sh. Abdul Karim, Advocate‑on-

Record for Petitioner.

Nemo for Respondent.

The petitioner purchased a piece of agricultural land for Rs. 33,000 and a suit was filed to pre‑empt the sale by the respondent. One of the questions which arose and which is still of relevance is whether the respondent had a superior right of pre‑emption. The conten tion of the petitioner herein was that he was also a land owner in the village, hence his rights were equal to those of the pre‑emptor and, therefore, he did have any superior right. In order to show that he also was a land owner he relied upon a document according to which he was sold a piece of land in the village measuring 11 marlas for Rs. 99. No mutation was entered with respect to this land in his favour and this document though attached by him along with his written statement was not, however, got exhibited or proved during the course of trial. It has, however, been urged on behalf of the petitioner that even though this document was not ex hibited it could be looked into as a proof of his ownership of some land in the village on the strength of judgment of the West Pakistan High Court in P L D 1961 B J 96. This argument was also raised in the Courts below but was not accepted for the reason that an un exhibited document which has been produced by a party cannot be looked into for his own benefit but can only be looked into by the opposite party This uninhibited document, therefore, could not be relied upon by the defendant (petitioner herein) as it was placed on the record by him. It may, however, be mentioned that the trial Court did accept the petitioner herein (defendant in the suit) as owner of the land in the village on the ground that Muhammad Afzal, Lambardar, D. W. 4, who bad appeared as a witness had made a statement to the effect that the petitioner was also an owner of the land and relying on this statement found him to be an owner in the village and dismissed the suit.

On appeal, the learned Additional District Judge held that the above statement of lambardar could not be accepted for the reasons that the said witness had been summoned to prove the fact of payment of Rs. 33,000 as the sale price before the Registrar at the time of registration of the sale deed and not as a witness to prove the ownership of the peti tioner in the village. Indeed, no question on this point was put to him in the examination‑in‑chief. It was only during the course of examination that he volunteered the statement that the petitioner herein (defendant in the suit) was also an owner in the village, as his statement on this point could not, therefore, in these circumstances, be safely relied upon. The learned Additional District Judge, however, agreed with the learned trial Court that the un exhibited document regarding sale of 11 marlas of land for Rs. 99 in favour of the defendant (petitioner herein) could not be taken into consideration. Consequently, it was found that the petitioner had not proved that he was owner in the village and the suit for possession through pre‑emption filed by the respondent was decreed on his depositing the sale price of Rs. 33,000.

The petitioner, therefore, filed a second appeal (R. S. A. 864/79) in the Lahore High Court. The views of the learned Additional District Judge were upheld by a learned Single Judge on the ground that the document of sale of 11 marlas of land in favour of the petitioner not having been tendered and exhibited in the proceedings could not establish the factum of his becoming the owner of laid in the estate. It was observed that the sale had not been given effect to by a mutation nor the possession of the sold land was proved to have been transferred to the petitioner by production of document like khasra girdawari. The oral statement by the lambardar could not be regarded as the best evidence to prove the fact of ownership. It was added that, "since the best evidence which should have been produced had not been produced by the petitioner the presumption would be against him and that the so‑called sale was not the actual fact and it was only introduced to resist the claim of the pre emptor". The appeal was, accordingly, dismissed, hence this petition for special leave.

The learned counsel for the petitioner has reiterated the contentions raised by him before the Additional District Judge and the High Court that the statement of the lambardar ought to have been accepted in the circumstances of the case. Both the Additional District Judge and the High Court have given reasons for not relying upon the said statement and we do not find any ground to differ with the view expressed on this.4 question by the said two Courts. We also agree that the unexhibited document of sale in favour of the petitioner herein could not be looked at and had to be excluded from consideration. On so doing, the peti tioner failed to establish his claim of also being an owner in the village. The plaintiff (respondent herein) who is admittedly an owner in the village had, therefore, a superior right of pre‑emption and his suit was, accord ingly, rightly decreed.

The petition, therefore, fails and is dismissed hereby.

Petition dismissed.

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