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‑‑S. 115‑‑Finding of fact‑‑ Revisional jurisdiction, exercise of‑‑Finding of fact concurrently arrived at by two Courts below as a result of appreciation of evidence on record, held, was not open to be interfered with in revisional jurisdiction of High Court in absence of allegation that any piece of evidence brought on record had been ignored or that evidence had not been read properly by Courts below.

‑‑S. 15‑‑Pre‑emption suit‑‑Doctrine of sinker‑‑In absence of any evidence on record that co‑vendees of tenant in occupation of suit land ever had cultivated such land or that they had paid their shares of sale price separately, vendee‑tenant in occupation of suit land, in joining co‑vendees in sale who had no right of pre‑emption, held, 'would lose even his own right on account of application of doctrine of sinker.

‑‑‑S. 115‑‑Punjab Pre‑emption Act (I of 1913), Ss. 15 & 19‑‑Finding of fact on issues of waiver and sinker‑‑Revisional jurisdiction, exercise of‑‑High Court in exercise of revisional jurisdiction normally, held, would not interfere in concurrent finding of Courts below on question of fact unless such finding was not based on proper and correct appreciation of evidence on record‑‑Well considered concurrent finding of two Courts below on factual question of estoppel and superior right of pre‑emption based on exhaustive examination of evidence on record could not be interfered with in revisional jurisdiction.

Fayyaz Ahmad Shaheen for Petitioners.

Petitioners have, vide sale Mutation No. 191, dated 27‑10‑1979, purchased land measuring 84 Kanals situated in Mauza Wah Machka Chak Khas, Tehsil and District Rajanpur, for a sale price of Rs.5,250 from Aman Uliah son of Sarfraz Khan, its previous owner. Majid Ullah, real son of the vendor, brought a suit for pre‑emption in respect of the sale made in favour of petitioners namely, Sawan and others, on the grounds, that being son of the vendor, coupled with the fact of being co‑sharps and owner of the estate, had a superior, right of pre‑emption against the vendees, who were total strangers. Vendees in their joint written statement contested the right of the plaintiff on numerous grounds. It was pleaded that the suit was barred by time and that the plaintiff pre‑emptor by his conduct was estopped to file a suit for pre‑emption. As regards superior right, it was pleaded that the defendants were in occupation of the suit land as tenants prior to the sale and as such were possessed of a right superior to that asserted by the plaintiff. However, other grounds, on which the right was asserted, were also controverted. Learned trial Judge, in view of the dispute, raised following issues:‑

(1) Whether the suit is time‑barred O.P.D.

(2) Whether the suit is barred under the principle of estoppel O.P.D._

(3) Whether the plaintiff has superior right of pre‑emption O.P.P.

(4) Whether Rs.5,250 qua vendor were paid in good faith and actually paid 0. P. D.

(5) If issue No. 4 is not proved, what was the market value of the suit land at the time of sale O.P. Parties.

(6) Relief .

Parties were afforded opportunity to lead evidence. Availing of the opportunity, they produced evidence in support of the aforenoted issues. Vide judgment and decree dated 25‑6‑1984, learned Senior Civil Judge, Rajanpur decreed the suit in favour of Majid Ullah respondent on payment of Rs.5,250 as the sale price of the suit land. Issue No. 3 was found in favour of the plaintiff while issues Nos. 1 and 2 were answered against the defendants. On issue No. 4, it was found that the sum of Rs.5, 250 was the actual price of the suit land and the same was its market value. Against the decision of the learned Senior Civil Judge, vendees preferred an appeal in the Court of learned District Judge, Rajanpur. Appeal was dismissed on 8‑4‑1985 and the findings recorded by the learned Trial Judge were maintained in their entirety. Before the first Court of appeal, findings on issues Nos. 2 and 3 alone were brought under challenge. As regards issue No. 2, it was asserted that the defendants have proved that the plaintiff/ pre‑emptor had participated in the sale and had also assured the vendees on Holy Qur'an that in no case he would pre‑empt the sale made by his father. As regards issue No. 3, it yeas argued before the Court of the appeal that the defendants were in occupation of the suit land as tenants and their possession was also recorded as such in the aforenoted capacity in the Revenue Records. Copies of Khasra Girdawaries Exh. D.1 to Exh. D.3 were relied upon to prove tenancy rights. Learned District Judge, however, did not agree with the contentions raised before him, and in consequence, on examination of the record and hearing of the parties, maintained the decision of the trial Court. Both these concurring judgments have been brought under challenge in revisional jurisdiction by the defendants. Like the Court of appeal, the dispute is confined to findings on issues Nos.2 and 3 only. It was admitted that the plaintiff was real son of the vendor and in case, the defendants failed to prove tenancy rights as asserted by them he was possessed of a superior right of course subject to finding on issue relating to estoppel. I propose to take up issue of estoppel first. Sawan, defendant, apart from his own statement produced two witnesses. It was stated by them that Mapd Ullah was present at the time of the bargain and had assured the vendees on Holy Qur'an that in case they purchased the land from his father, he would not assert his right of pre‑emption. Sawan defendant also testified to the same effect. On the other side, Majid Ullah plaintiff alone appeared and denied his presence at the time of bargain. Trial Court on appreciation of the material placed before it, found issue of estoppel/ waiver not proved. The said finding has been maintained in appeal. Finding of fact reached by the Courts below in the result of appreciation of evidence made by them is not open to interference in revisional jurisdiction. It is not the case of the petitioners that any piece of evidence brought on record had been ignored or that the evidence had not been read properly. Finding on issue No.2, therefore, was correctly recorded against the petitioners and was not open to reception. As regards issue No.3 that the defendants were tenants, in the suit land at the time of sale, the Courts below in view of the entries of Khasra Girdawaris Exh. D.1 to Exh. D.3 found against them. Land was purchased by six vendees for a sum of Rs.5,250 from Aman Ullah vide sale Mutation No.191 dated 27‑10‑1979. Petitioners Nos. 2 to 6 are sons and daughters of Sawan petitioner No. 1. Though the shares purchased by the vendees are specified in the sale mutation, the consideration money seems to have been paid in lump sum. There is not an iota of evidence on file that the vendees who are members of one family paid their shares of the sale price separately. In the absence of such an evidence, it can be safely presumed that the sale price was paid by them in lump sum. In this view of the matter the transaction was joint and indivisible. Learned counsel has failed to convince me that the transaction was divisible qua each vendee. Sawan who is father of the other vendees, appeared as D.W.3, did not utter a word on the question of divisibility of the sale or that the sale price was paid by various vendees according to their shares. Copies of Khasra Girdawaris Exh. D.1 to Exh. D.3 have not been appended with the Civil Revision.

During the course of arguments, learned counsel showed me a photo copy of Khasra Girdawari pertaining to the suit land commencing from Kharif 1979 to Rabi 1983. On this aspect of the rights as asserted by the defendants, the learned District Judge observed:‑

"On the other side, the learned counsel for the respondent argued that it was an admitted fact that Majid Ullah, the plaintiff/ respondent was son of Aman Ullah the vendor. He also argued that in Khasra Girdawari copy Exh. D.1 from Kharif 1971 to Kharif 1976 Dur Muhammad and Lalu had been shown as tenants of the suit land and Shah Muhammad and Mst. Bibi had not been shown as tenants and in the Khasra Girdawari copy Exh.D.2 for Rabi 1977 only Sawan has been shown as tenant and in Khasra Girdawari copy Exh.D.3 from Kharif 1979 to Rabi 1983 Durra, Dur, Muhammad, Lalu and Sawan have been shown as owners‑co‑sharers. I have considered the arguments and have perused the record. According to Khasra Girdawari from Kharif 1979 to Rabi 1981, only Sawan has been shown as tenant of the suit land. This Khasra Girdawari is relevant. The sale mutation was attested on 27‑10‑1979 and at that time only Sawan was the tenant of the suit land and not the other vendees/respondents.

Sawan as such by joining the strangers has lost superior right of pre‑emption under the principle of sinker. There is no force in the arguments of the learned counsel for the appellants. The findings of the trial Court on issue No.3 are also correct and are maintained."

I have also examined the photo copy of Khasra Girdawari produced by learned counsel for the petitioners. In Khasra Numbers given in the Khasra Girdawari, Sawan son of Allah Ditta alone was shown to be a tenant from Kharif 1979 to Rabi 1981. Thereafter, the vendees were shown in possession as co‑sharers. Since the sale was joint and indivisible, Sawan, a tenant in occupation of the suit land, had in joining the remaining vendees in the sale who had no right of pre‑emption, lost even his own right on account of application of the doctrine of sinker. There was no evidence on file at least none was pointed out that the other vendees cultivated the suit land as tenants either before or at the time of sale. Decision on issue No.3, therefore, was unexceptionable and cannot be successfully assailed in revisional jurisdiction. It is well‑established that the High Court normally would not interfere in case where lower Courts have reached concurrent finding on question of fact unless it is of the view that the finding is not based on proper, fair and correct appreciation of evidence. In this case, I am of the opinion that the two Courts below have exhaustively examined the evidence and in the result of scrutiny reached a correct decision on issues of estoppel and superior right of pre‑emption. I see no good reasons to interfere with the well‑considered findings of the Courts below. In the result, civil revision is found to be without merit and is ordered to be dismissed in limine.

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