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Regular Second Appeal No. 27 of 1974/BWP, decided on 3rd October, 1981.

S. 15‑Pre‑emption suit‑Superior right‑Respondent neither seriously challenging claim of plaintiff/pre‑emptor to be collateral of vendor nor cross‑examining him or leading evidence in rebuttal‑First Appellate Court overlooking important piece of evidence proving fact of plaintiff being collateral of vendor and drawing incorrect inferences resulting in miscarriage of justice‑Judgment of trial Court decreeing suit of pre emptor restored in circumstances.

Sh. Inayat Ali for Appellant.

Ch. Abdus Sattar for Respondents.

Date of hearing : 3rd October, 1981.

This second appeal calls in question the validity of judgment and decree dated 2‑4‑1974 of the learned Additional District Judge, Rahimyarkhan whereby he accepted the appeal of Muhammad Ashraf, etc. and dismissed the suit of the present appellant.

2. The facts of the case are that the appellant instituted on 21‑12‑1971 a suit for possession through pre‑emption of the suit land against Ata Mohy ud‑Din and Mehdi Khan, the vendees, who had purchased the land in dispute from Zahoor Ahmad by means of mutation No. 690 sanctioned on 24‑12‑1970. Ata Mohy‑ud‑Din died during the pendency of the suit and was substituted by Muhammad Asbraf, etc. his successors‑in‑interest. The suit was contested by the parties which gave rise to the following issues :‑

(1) Whether the plaintiff has the superior pre‑emptive right qua the defendants vendees O. P.

(2) Whether the plaintiff has been served with the statutory notice as contemplated under section 19 of the Punjab Pre‑emption Act If so, with what effect O. P. D.

(3) Whether. the plaintiff has no cause of action to institute this suit O. D. D.

(4) Whether this plaint has been insufficiently stamped If so with what effect and what is the correct valuation thereof O. D.

(5) Relief.

The learned trial Court decided all the issues in favour of the plaintiff and decreed the suit on 5‑6‑1973 holding that the appellant had a superior right of pre‑emption. The judgment of the trial Court was reversed ‑ in appeal on the ground that the plaintiff failed to prove being collateral of the vendor and had no superior right of pre‑emption.

3. Learned counsel for the appellant contended that the learned Additional District Judge misread the evidence on the record while deciding issue No. 1 and his findings, are liable to be set aside. It is stated that the pedigree‑tables (Exh. P. 1 and Exh. P. 2) brought on the record clearly proved that the appellant was collateral of Zahoor Ahmad vendor. Learned Ist Appellate Court overlooked that testimonies of plaintiff's witnesses specifically asserting about the relationship of the plaintiff with Zahoor Ahmad vendor, without effective cross‑examination on this point and leading no evidence in rebuttal proved issue No. 1 in favour of the plaintiff.

4. He referred to the statement of Nazir Ahmad who stated that Zahoor Ahmad vendor was son of Abdul Aziz and Abdul Aziz was son of Rehmay Khan and that Rehmat Khan was son of Khairo Khan. He further stated that Ghulam Muhammad pre‑emptor was son of Kakay Khan and Kakay Khan was son of Sondhey Khan and Sondhey Khan was son of above mentioned Khairo Khan. It is pointed out that his evidence regarding the above‑mentioned relationship was not challenged by effective cross‑examina tion. It is also pointed out that Ghulam Muhammad pre‑emptor also corroborated the statement of Nazir Ahmad (P. W. 1) regarding the rela tionship of Zahoor Ahmad vendor with the pre‑emptor through Khairo Khan, the common ancestor and he was not cross‑examined so as to belie his assertion in that behalf. It is also stated that no evidence contradicting the above relationship was produced by the defendant in rebuttal. Zahoor Ahmad vendor himself appeared as D. W. 2 and in the examination in chief he showed his ignorance about the fact whether the plaintiff was his collateral. He also showed his ignorance about the name or the father or his grand father and suppressed to disclose the name of the father of Kakay Khan. Mehdi Khan vendee also appeared and did not bring on the record any document to show that the pre‑emptor was not collateral of the vendor. It is also stated that the words Sondba or 'Dosondha' or 'Rehman' or 'Rehmay Khan, are used interchangeably in the revenue record, the fore, discrepancy to the extent pointed out was not fatal to prove that the pre‑emptor was not collateral of the vendor.

5. Learned counsel for the respondents, on the other hand, stated that the onus of proving the issue that the appellant had superior right of pre emption being collateral of the vendor was on the plaintiff. The documents Exh. P. 1 and Exh. P. 2 brought on the record by the plaintiff are irreconcil able inasmuch as that in Exb. P. 1 Kaka is shown to be son of Sondha whereas in Exh. P. 2 Kaka is shown to be son of Dosondha. He, however, could not controvert the contention raised by learned counsel for the appellant that neither Nazir Ahmad nor Ghulam Muhammad P. Ws. 1 and 2 were cross‑examined effectively so as to show that the plaintiff was not collateral of the vendor. Learned counsel also did not seriously support the observation of the learned First Appellate Court regarding the interpolation pointed out in Exh. P. 1 after examining, the certified copy of Exh. P. 1 placed by the appellant on the record.

6. I have weighed the arguments advanced by learned counsel for the parties. The respondents did not seriously challenge the evidence of the plain tiff proving himself as collateral of the vendor inasmuch as that Nazir Ahmad P. W. and the pre‑emptor were not effectively cross‑examined nor the respon dents led evidence in rebuttal, proved the issue No. 1 in favour of the appellant. The learned First Appellate Court overlooked this important piece of evidence which proved the fact of plaintiff being collateral of the vendor. Even Zahoor Ahmad vendor who appeared as D. W. 3 did not specifically deny his relationship with the plaintiff but showed his ignorance. The learned Additional District Judge omitted to consider the material evidence on the record and drew inconsistent and incorrect inferences resulting in miscarriage of justice.

7. The documents Exh. P. 1 and Exh. P. 2 support the case of the plaintiff. The minor misdescription in words "Sonda" and "Dosonda" are not so serious as interpreted by the learned First Appellate Court. I agree with the observation of the learned trial Court that the words "Sondha" and "Dosondha" or "Rehma" and "Rehman Khan" are interchangeably used in the revenue record. I, therefore, set aside the judgment of the First Appellate Court and accept this appeal while restore the judgment and decree of the learned trial Court. There shall be no order as to costs.

M. Y. H. Appeal accepted.

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