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Regular Second Append No. 155 of 1984, decided on 17th March, 1986.

---S. 100 & 0. XLI, R. 16--Proceedings of Court below--Presumption of truth--Proceedings before First Appellate Court revealed that on date of hearing of appeal parties and their counsel were present and appeal was dismissed by Court after hearing arguments--Proceedings of First Appellate Court, held, would carry presumption of truth--In view of observation of such Appellate Court that arguments were heard before deciding appeal, contention of appellants that their counsel was not heard, could not be accepted.

---S. 100--Punjab Pre-emption Act (I of 1913), S.15--Second appeal- Pre-emption suit--Superior right of pre-emption-- Determination of- Concurrent findings of Courts below--Appellate jurisdiction, exercise of--Pedigree-table tendered in evidence by pre-emptor showed pre-emptor and vendor as collaterals and one of vendees in cross-examination unequivocally admitted that father of pre-emptor and father of vendor were cousins--Concurrent findings of Courts below that pre-emptor possessed superior right of pre-emption qua vendees, held, could not be reversed in second appeal in circumstances.

Ch. Muhammad Farooq for Appellants.

Muhammad Nazeer Janjua for Respondent No. 1.

This regular second appeal is directed against the judgment and decree of the Additional District Judge, Faisalabad, dated 28th of May, 1984 whereby the appeal filed by the appellants from the judgment and decree passed by the Civil Judge 1st Class, Faisalabad on 28th of April, 1982 decreeing the pre-emption suit of Chakar, respondent No, 1 was dismissed with costs.

2. Agricultural land measuring 116 Kanals 8 Marlas situate in Mauza Jalli Fatiana, Tehsil Samundri District Faisalabad was sold by Aziz Ahmad, respondent No. 2 to the appellants and Haji Ghulam Muhammad, who is now dead and is represented by respondent No. 3 (I to V) for Rs.23,750 by a registered sale-deed, dated 15th of November, 1969. Chakar, respondent No. 1 instituted a suit to pre-empt the sale claiming his right of pre-emption on the grounds that he was a Khewatdar and also a collateral of the vendor. While Haji Ghulam Muhammad, one of the vendees, in his written statement admitted the suit, the appellants who were the remaining vendees resisted the suit denying that respondent No. 1 had a superior right of pre-emption against them. They also raised preliminary objections to the effect that Chakar respondent No. 1 had no cause of action and no locus standi to institute the suit, that he had waived his right of pre-emption, that the suit was fictitious and collusive, that the suit was barred by time against four of them who were minors and that the suit had not been properly valued for the purposes of court-fee and jurisdiction.

3. After appraisal of the evidence adduced by the parties, the suit was decreed on 16th of March, 1976. The appellants preferred an appeal which was accepted and the suit was remanded with the direction to. decide afresh the issues with regard to limitation, valuation of the suit for purposes of court-fee and jurisdiction and preferential right claimed by respondent No. 1 after recording further evidence of the parties. In compliance with the order of remand, the trial Court adjudicated upon the issues again and decided them in favour of respondent No. 1 and decreed his suit on payment of Rs.23,750. Feeling dissatisfied, the appellants preferred an appeal which was heard by the learned Additional District Judge, Faisalabad who vide his judgment and decree, dated 28th of May, 1984, impugned in this appeal, dismissed the same. Hence this regular second appeal.

4. Learned counsel for the appellants has pressed into service two contentions; firstly that the disposal of the first appeal by the lower appellate Court offends against the provisions of Order XLI, Rule 16, C.P.C. inasmuch as the counsel for the appellants was not heard and secondly that the evidence on record does not support the concurrent finding of the learned Courts below that respondent No. 1 possessed a superior right of pre-emption qua the vendees. In support of the first contention, an affidavit of Mian Muhammad Rafiq, Advocate, of Faisalabad, has been filed. He has sworn that on the date of hearing of the appeal, he appeared before the learned Additional District Judge. He requested for an adjournments, but the learned Judge remarking that the arguments would be heard on that date fixed 1 p.m. for this purpose. He, however, remained busy in an election case and when he went to the Court of the Additional District Judge at 1-30 p.m. he came to know that the appeal had been heard and decided at 1 p.m. From a perusal of the record of the lower Appellate Court it reveals that the appeal came up for hearing before the learned Additional District Judge on 28th of May, 1984 on which date the parties and their counsel were present and after hearing arguments he dismissed the appeal. He further remarked that counsel for the appellants had sought an adjournment but it was declined. The proceedings of the Court carry presumption of truth. In view of the observation of the learned Additional District Judge that he had heard the arguments before deciding the appeal, the contention of the appellants that their counsel was not heard cannot be accepted.

5. So far as the second contention is concerned, the pedigree table tendered in evidence by respondent No. 1 as Exh.P.7 admittedly shows that he and the vendor are collaterals. Not only this but Muhammad Ali D.W.2, one of the appellants, also unequivocally admitted in his cross-examination that the father of respondent No.l and the father of the vendor were cousins. In this connection, learned counsel for the applicants has referred to another pedigree-table brought on record by respondent No. 1 as Exh.P.3. is laconic inasmuch as the common ancestor of the persons mentioned there has not been indicated. This lacuna stands supplied by the pedigree-table Exh.P.7.

In these circumstances, there is no justification for reversing the concurrent finding of the learned Courts below on the 'issue of right of pre-emption.

6. For the foregoing reasons, I find no ground for interference and accordingly dismiss this appeal in limine.

H . B . T . Appeal dismissed.

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