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Civil Revision No.2095/D of 1984, decided on 12th March, 1986.

‑S.115 & O.XVI1, R.3‑‑Punjab Pre‑emption Act (I of 1913), Ss.4 & 15‑‑Superior right of pre‑emption‑‑ Proof‑‑Revisional jurisdiction, exercise of‑‑Better right of pre‑emption could not ‑be held proved in favour of pre‑emptor unless conceded by vendee or proved by pre‑emptor by producing evidence‑‑Order of Trial Court decreeing pre‑emption suit in favour of, pre‑emptor after closing evidence of vendee and without requiring pre‑emptor to produce evidence in support of better right of pre‑emption, being unjustified was set aside by High Court in exercise of revisional jurisdiction.

Ch. Muhammad Rafique for Petitioners.

Allah Wasaya Malik for Respondents.

Date of hearing: 12th March, .1986.

This Civil Revision calls in question the judgment /decree, dated 5‑9‑1984 of the learned Additional District Judge, Bhakkar.

2. The petitioners/defendants were sued by the respondents/ plaintiffs to pre‑empt the impugned land. Various issues dividing onus on both the parties were framed. One of them related to the respondents/ plaintiffs' superior right of pre‑emption and obviously the onus thereof lay on them. The trial Court rightly or wrongly directed the petitioners /defendants to lead evidence perhaps because of the divided onus. It appears that they did not produce evidence though they were allowed one or two adjournments, nor did they pay costs with which they were burdened on last occasion. The trial Court without caring to see if there was any evidence on the record to prove the respondents' better right of pre‑emption, decreed the entire suit. The learned Additional District Judge upheld the decision.

3. Since the issue relating to better right of pre‑emption had t be proved by the respondents/plaintiffs, it could not have been possibly decided in their favour unless it was either conceded or proved by evidence. It is not denied that the stage to bring evidence in its support had yet not reached when the trial Court in its desire to punish the petitioners passed a sweeping order to decree the entire suit.

4. There is considerable force in the contention of Mr. Muhammad Rafique for the petitioners that without evidence, better right of pre‑emption could not be held proved, all the more when it was not admitted. The proper course in the circumstances was to have asked the respondents to produce their evidence to discharge the respective onus of issues Nos. 8 and 9. Without observing this requirement, there was no justification for deciding those issues or for that matter issue No.9, relating to better right of pre‑emption, in their favour.

5. As result, the Revision petition is accepted, the impugned judgment/decree is set aside and the case is remanded to the Trial Court for deciding it afresh after taking evidence in accordance with law. The parties are left to bear their own costs.

H.B.T.

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