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‑‑ S. 115‑Pre‑emption suit‑District Judge decreeing suit in respect of share of widow on basis of her relationship with respondent based on misreading of evidence‑Open to interference by High Court to revision.‑ [Pre‑emption).

Ch. Mushtaq Ahmad Khan for Petitioners.

Taqi Ahmad Khan for Respondent.

Date of hearing: 22nd January, 1983.

Muhammad Hussain respondent filed a suit against the petitioners, to pre‑empt the sale of the land in dispute, made in their favour by Ms; Rasulan Bibi widow, Surriya Bibi daughter and Muhammad Sabir son of Khushi Muhammad. He based his superior right of pre‑emption on‑ his claim of being a collateral of the vendors. This controversy was reflected in issue No. 1.

2. The learned trial Court relied upon the Pedigree‑table Exh. P. Z and the statement to answer this issue in favour of the latter and accord ingly decreed the suit, in his favour on 10th June, 1980.

3. Aggrieved by the judgment and decree of the trial Court, the petitioners preferred an appeal. Before the learned District Judge, they did not dispute the respondent's relationship with Mst. Surriya Bibi and Muhammad Sabir but took up the stand that he was in no way connected with Mst. Rasulan Bibi and; therefore, to the extent of her share the suit could not have been decreed. The learned District Judge, however, referred to the statement of Hidayat Ullah petitioner wherein he deposed that Mst. Rasulan Bibi is the aunt of the respondent. On the basis of this statement, the learned District Judge, after making some variationg in the sale price fixed by the learned trial Court, upheld the respondent's claim as to the superior right of pre‑emption in respect of the entire land. The vendees petitioners have come to this Court under section 115, C. P. C.

4. I have heard the learned counsel for the parties. The only point urged on behalf of the petitioners is that the evidence has been grossly misread by the learned District Judge in decreeing the suit in respect of the share of Mst. Rasulan Bibi, on the basis of the respondent's relationship with her.

5. To weigh this submission, I have examined the trial Court's record, with the assistance of the learned counsel for the parties. It is discernible from the Pedigree‑table Exh. P. 2, that the respondent is the collateral of Khushi Muhammad deceased and accordingly, this consanguineness qua the respondent is passed on even to the children of the deceased namely Mst. Surriya Bibi and Muhammad Sabir. However, so far as Mst. Rasulan Bibi is concerned who is the widow of Khushi Muhammad, the Pedigree‑table in no way connects her, with the respondent. Hidayat Ullah petitioner in his statement simply deposed that she is the (aunt) of the respondent. The word (aunt) would not in any manner imply blood relationship. In fact in the statement, the witness categorically deposed that except being his its'' there is no blood relationship between her and the respondent. Evidently this part of the statement of the petitioner, was overlooked by the learned District Judge.

6. The learned counsel for the respondent, however, heavily relied upon the statement of the pre‑emptor wherein he claimed .to be Yakk Jaddi of the vendors. As already observed, it is correct to the extent of Mst. Surriya Bibi and Muhammad Sabir vendors but this self‑serving solitary statement of the pre‑emptor which does not find any corroboration from the Pedigree‑table Exh. P. 2 cannot be accepted as a proof of his claim in respect of the land sold by Mst. Rasulan Bibi. This statement is not the basis of the impugned judgment. Indeed, the weight of the evidence on the record, is clearly suggestive of the inference that Msl. Rasulan Bibi is not related to the respondent except that she being widow of Khushi Muhammad, is the aunt of the former. It is thus obvious, that the learned District Judge misread the evidence and noted illegally in upholding the trial Court's decree, for the entire land.

7. For the foregoing reason this revision is accepted and the impugned, judgment and decree are altered to the extent that the suit in respect of the land falling to the share of Mst. Rasulan Bibi is dismissed. The respondent is said to have already deposited in the Court, the sale price, in pursuance of the judgment and decree, for the whole land. He would be entitled to the refund of the sale price proportionate to the land, for which the suit stands dismissed.

The parties are left to bear their own costs.

M.Z.M. Petition accepted.

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