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Civil Appeal No. 18‑P of 1975, decided on 2nd May, 1984.
(On appeal from. the judgment, dated 16‑4‑1974 of the Peshawar High Court in Civil Revision No. 246 of 1972).
‑‑ Art. 185 (3)‑Civil Procedure Code (V of 1908), S. 115 ‑N.‑W. F. P. Pre‑emption Act (XIV of 1950), S. 12‑Suit for pre emption‑Revision‑High Court holding that since fact of absence of valid sale by vendee stood concluded by concurrent findings of two Courts below, matter could not be re‑opened in revision under S. 115, C. P. C.‑Held, case not a proper and fit one wherein leave to appeal could or should have been granted‑Order granting leave to appeal rescinded.
A. Samad Khan, Advocate‑on‑Record for Appellants.
Khan Bahadur Khan, Advocate Supreme Court with Nur Ahmad Khan, Advocate‑on‑Record for Respondents Nos. 1 to 3.
Date of heating : 2nd May, 1984.
‑Muhammad Azim, the predecessor‑in‑interest of the appellants filed a suit to pre-empt ‑the sale of the land measuring 2 kanals 5 marlas allegedly made by Mst. Begum Jan wife of Muzzaffar Shah in favour of Mukhtar Din, which suit was decreed.
The heirs of Mst. Begum Jan, who had, in the meanwhile died, brought a suit against the alleged vendees and the pre‑emptor for declaration that the sale of Mst. Begum Jan of the land was fictitious, fraudulent and without consideration and, therefore, ineffective as against the vendor and after her death, her heirs the plaintiffs. The suit was contested by Muhammad Azim (the pre‑emptor). The learned trial Court. decreed the suit on the finding that there was no valid sale by Mst. Begum Jan. On appeal by Muhammad Azim, the decree of the learned trial Court was maintained by the learned District Judge, against which a revision was taken by Muhammad Azim before the High Court, which was dismissed by it in limine vide order dated) 16‑4‑1964. The learned Single Judge opined that the fact that there was no valid sale by Mst. Begum Jan in favour of Mukhtar Din stood concluded by a concurrent finding of fact and this was not open in revision under section 115, C. P. C.
The pre‑emptor having died in the meantime, his heirs filed a petition for leave to appeal against the order of the High Court, dated 16‑4‑1964 and leave to appeal was granted by this Court vide its order, dated 6‑2‑1975 to consider the question whether in the facts and circumstances of this case the High Court did not have the jurisdiction to question, in revisional jurisdiction, the concurrent findings of fact recorded by the two Courts below.
The appeal has now come up for hearing before us.
After having heard the learned counsel for the parties we consider that this was not a fit and proper case wherein leave to appeal could or should have been granted. We would, accordingly, rescind the order date 6‑2‑1975 granting leave to appeal, with the result that the petition shall stand dismissed.
S. Q. Order granting leave rescinded.
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