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Civil Revision No. 2452-D of 1986, decided on 2nd February, 1986.

---Ss.4 & 15--Civil Procedure Code (V of 1908), S.115--Pre-emption suit--Decree--Conclusion of Court about incidental expenses on improvement--Question of fact--Courts below drawing their conclusions as to improvements after taking into consideration evidence adduced in that behalf--Findings by both Courts below on question of fact appearing to be in keeping with material on -record--Courts not shown to have exercised their jurisdiction improperly--Interference declined in revisional jurisdiction.

Ch. Hassan Ahsan for Petitioner.

This civil revision arises out of a suit instituted by the respondents on 21-9-1980 against the petitioners and others in the Civil Court at Shorkot for possession through pre-emption in respect of the land measuring 65 Kanals 4 Marlas situated in Chak No. 490/J. B. Tehsil Shorkot District Jhang purported to have been sold by Mst. Sughran Begum to the petitioners and three others in consideration of Rs.70,000 vide registered sale deed dated 22-9-1979. The suit was resisted by the petitioners and others.

2. The learned Civil Judge decreed the suit vide judgment dated 27-5-1986 holding the respondents as having a superior right of pre-emption on the basis of their being sharers in the khata of the suit land at Rs.70,000 which amount was during the trial admitted as the sale price of the suit land. The learned Civil Judge allowed the incidental expenses to the petitioners and others i.e., Rs.1,225 paid as District Council fee and Rs. 2, 800 paid towards stamp duty but dis-allowed the claim of the petitioners and others to the extent of Rs.45.000 as having been spent upon improvements.

3. An appeal purported to have been filed by the petitioners, Mopal, Noor Muhammad and Rab Nawaz from the said decree of the learned Civil Judge came to be decided by the learned Addl. District Judge, Jhang, before whom Mopal, Noor Muhammad and Rab Nawaz appeared in person and submitted their affidavits to the effect that they did not file the appeal and that they did accept the judgment and decree passed by the learned Civil Judge, so the appeal regarding them was dismissed. There the finding of the learned Civil Judge only on issue No.4 was assailed which issue was, "Whether defendants effected improvements on the suit land. if so, when, of what amount and with what effect " The learned Addl. District Judge upheld the finding of the learned Civil Judge on issue No.4 and consequent thereupon dismissed the appeal vide his judgment dated 27-9-1986.

4. The learned counsel for the petitioners has contended than the petitioners have been wrongfully disallowed the improvements as claimed by them, the evidence adduced in that behalf should have been given due weight.

5. The learned Civil Judge regarding the improvements as claimed observed that on the issue there were simple statements of D.W.1 arid D.W.2 who had stated that the petitioners (and others) had constructed five rooms one (kachi) bathak, four walls and one shed for cattle. They had stated that on the construction so raised Rs.45,000 were spent. Neither D.W.1 nor D.W.2 could tell that on which killa the mentioned construction stood. Mopal as D.W.3 made a similar statement. In the cross-examination Mopal stated that the alleged constructions were on the land measuring two Kanals in Kills, No.3 Square No.5. The sale in question was made on 22-9-1979. According to Ex. D.3 a copy of Khasra Girdawari produced by the petitioners and others at the time of sale in Killa No.3 Square No.5 there was already "Gher Mumkan Abadi" on the land measuring 2 Kanals which showed that the alleged construction was there at the time of sale in question so the learned Civil Judge concluded that the petitioners and others had neither raised any construction on the suit land nor effected other improvements on the same. The learned Addl. District Judge regarded the evidence adduced in support of the improvements as bald and indefinite assertions of the D.Ws as to the raising of the construction at the cost of Rs.40,000 or Rs.45,000. According to him the D. Ws. did not inspire any confidence so could not be relied upon.

Both the Courts below have drawn their conclusions as to the improvements after taking into consideration the evidence adduced in that behalf. The findings returned by both the Courts below are on a question of fact and appear to be in keeping with the material on the record, and as the learned counsel for the petitioners has not shown that in doing so both the Courts below have exercised their jurisdiction with any of the defects as enumerated in Section 115 C. P. C., therefore, the same call for no interference, hence this civil revision is dismissed in limine being without any substance.

M.Y.H./B-18/L Petition dismissed.

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