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Civil Petition for Leave to Appeal No. 369/11 of 1985, decided on 21st January, 1986.
(On appeal from the judgment and order of Peshawar High Court, D.I. Khan Bench, dated 10‑4‑1985 in C.R. 59 of 1984).
‑‑‑Art. 185(3)‑‑Pre‑emption‑‑Land purchased for construction of houses‑‑Suit for pre‑emption‑‑ Decreed on basis of petitioner's superior right as co‑sharer‑‑Concurrent finding of two Courts upset in revisional jurisdiction‑‑High Court relying on its earlier decision‑‑Supreme Court on examination of evidence on record found impugned order not open to interference‑‑Leave to appeal refused.‑‑[ Pre‑emption].
Gul Jawar v. Nawab Khan and another P L D 1967 Pesh. 234 ref.
‑‑‑Art. 185(3)‑‑Leave to appeal, grant of‑‑Concurrent finding of two Courts‑‑Upset in revisional jurisdiction‑‑High Court placing reliance on its earlier decision in another case‑‑Order not open to interference‑ Leave refused.
Gul Jawar v. Nawab Khan and another P L D 1967 Pesh. 234 ref.
Maulvi Sirajul Haq, Advocate Supreme Court and M.A Siddiqui, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing: 21st January, 1986.
‑Mazharul Haq petitioner instituted a suit for possession by pre‑emption of land measuring 5 Kanals and 11 Marlas claiming superior right i.e. being co‑sharer in the suit land. The suit was contested by the respondents. The learned trial Court decreed the suit of the petitioner. Respondents filed an appeal before the learned District Judge which failed. Respondents then filed revision before the High Court which was allowed, vide the impugned judgment, dated 10‑4‑1985, setting aside the judgments of both the Courts below.
2. The only question raised before us by the learned counsel for the petitioner is that the concurrent finding of the two Courts below should not have been upset in revision by the learned High Court without any legal flaw. The learned Judge had omitted from consideration that respondent No.3 is a minor who had his own parents and family; that there was no evidence worth the name nor any indication whatsoever that he or his parents gave up their residence in Waziristan the respondent's guardian ad litem, in course of his service, could have moved from place to place. In his statement he did not even mention that he had shifted his residence from Waziristan. The learned High Court Judge was not justified in reversing the finding of‑ the two Courts below.
3. We have gone through the evidence on record, and examined the contention, of the learned counsel. The learned High Court Judge observed in the impugned judgment as follows:‑
"The plaintiff while giving the address of the defendants in the plaint had shown them as the residents of village Mandhra in which the suit land was purchased. Besides it is also proved from record that the guardian of the defendants stands posted as a Compounder in Civil Hospital, D.I. Khan. It thus stands established particularly when in rebuttal the plaintiff has adduced no cogent evidence that the guardian of the defendants who are minors is a resident of village Mandhra. He has purchased the land for the construction of the house for his minor sons the defendants. Undoubtedly the defendants being Mahsood do not originally hail from the village in which the land was purchased but from the evidence it has been proved that he has been permanently settled in village Mandhra. Learned counsel for the plaintiff respondent, however, contended that the defendants being minor, the land could not be purchased for construction of houses and that with a view just to defeat the pre‑emptive rights of the plaintiff respondent the defendants have given the colour to the transaction as for construction of houses. I, however, do not agree with this contention of the learned counsel because the law of pre‑emption has placed no bar on purchasin the land for the construction of house on a minor and thus t invoke exemption as envisaged by section 5(c) of the N.‑W.F.P. Pre‑emption Act. In this view, I am fully fortified by the 6 observation in Gul Jawar v. Nawab Khan and another reported as P L D 1967 Pesh. 234."
Thus, we find no reason to interfere with the impugned judgment. The petition is without merit and is, consequently, dismissed.
M.I.
Petition dismissed.
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