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Review Application No.15-C of 1977 in Regular Second Appeal No.679 of 1976, decided on 16th September, 1987.

---S.100 & O.XLVII, R.1--Punjab Pre-emption Act (I of 1913), S.15- Second appeal--Review--Petitioner's suit to pre-empt sale of land in dispute on ground, inter alia, that he being 'a collateral of the vendor had a superior. pre-emptive right and similar suit filed by rival pre-emptors dismissed by Trial Court--Appeals against Trial Court's judgment also dismissed by District Judge--Petitioner's second appeal dismissed by High Court in limine but second appeal filed by rival pre-emptors against same judgment of District Judge admitted to regular hearing by another Single Judge of the High Court--Petitioner filing review application on ground inter alia that although it was urged or, his behalf that statements of witnesses were not challenged in cross -examination and therefore, could not be rejected by Courts below, the said point was not considered in order under review--Single Judge who had dismissed petitioner's appeal admitting review application with observation that he was not definite whether or not the said point had been raised during arguments but it was certainly taken in grounds of appeal--Respondent's counsel frankly submitting that they had no objection to review being granted on ground that another appeal directed against same impugned judgment stood admitted and was pending--Points noted in admitting order, held, furnished a valid ground for review of the order--Review application allowed, order set aside and appeal admitted to regular hearing alongwith second appeal.

Ch. Muhammad Hassan for Petitioner.

Ch. Muhammad Farooq for Respondents Nos.1 and 2.

Ch. Muhammad Akram Gondal for Respondents Nos. 3 to 6.

Date of hearing: 16th September, 1987.

--This is an application under Order XLVII , rule 1 C.P.C. seeking review of the order dated 30-9-1976 dismissing in limine the petitioner's second appeal (RSA Ho.679 of 1976).

2. Facts relevant for the disposal of this review application, briefly stated, are that the petitioner brought a suit to pre-empt a sale of the land in dispute an the ground, inter alia, that he being a collateral of the vendor Ali Ahmad had a superior pre-emptive right: Similar suit was filed by Dilawar Khan and others, the rival pre-emptors. Both the suits were consolidated and tried together. After recording the evidence of the parties, learned trial Judge found that the plaintiffs had failed to prove their preferential right of pre-emption. He according dismissed both the suits vide judgment dated 15-4-1974. Application, filed by the plaintiffs also failed anti were dismissed by the learned District Judge, Sheikhupura, vide judgment dated 5-4-1976. Learned, District Judge did not believe the oral evidence holding, inter alia, that the witnesses while giving the relationship of the petitioner with the vendor had not deposed about the source of their information and special means of their knowledge. As regards Ali Muhammad P.W.2, brother of the vendor, it was observed' that he had given the pedigree table of the vendor and of the petitioner as also of Dilawar Khan, the rival pre-emptor, but his solitary statement without any corroboration could not be relied upon. Regarding the pedigree tables Exhs. P.9. and P.10, the finding was that they did not connect the petitioner with the vendor.

3. Feeling aggrieved, petitioner preferred a second appeal in this Court which, as stated above, was dismissed in limine. Learned Judge while dismissing the appeal held that the District Judge had given goon reasons for disbelieving the oral evidence and, in any case, concurrent findings of two courts recorded on a question of fact could not be challenged in second appeal particularly when there was no misreading of evidence alleged. It appears that after the petitioner's appeal was dismissed, second appeal filed by the rival pre-emptors directed against the same impugned judgment of the District Judge was admitted to regular hearing by Another learned Single Judge of this Court on 14-1-1977. Petitioner then filed the present review application on the ground, inter alia, that although it was urged on his behalf that the statements of P.W.2 and P.W.3 were not challenged in cross-examination and, therefore, could not be rejected by the Courts below, this point was not considered in the order under review. Learned Judge who dismissed the petitioner's appeal admitted the review application with the observation that since the note of the arguments was not available, he was not definite whether or not the aforesaid point had been raised during the arguments but it was certainly taken in the grounds of appeal. Note was also taken of another submission made on behalf of the petitioner that P.W.4 and DW.1 to DW.3 belonged to the same brotherhood and the same village and as such would be presumed to have the knowledge about the relationship between the petitioner and the vendor. It was also noted in the admitting order that after the dismissal of the petitioner's appeal, the appeal of the rival pre-emptors had been admitted by another Bench.

4. We have heard the learned counsel for the parties. Learned counsel appearing for the respondents have quite frankly submitted that they have no objection to the review being granted on the short ground that another appeal directed against the same impugned judgment of the learned District Judge stands admitted and is pending. Apart from this, the points noted in the admitting order passed in the review petition which have been referred to in the preceding Para furnish a valid ground for review of the order.

5. In view of what has been said above, we allow the review application, set aside the order under review and admit the appeal (RSA No.679-76) to regular hearing and direct that it be heard along with the connected RSA No.777 of 1976. In view of the fair and frank position taken by the learned counsel for the respondents, parties are left to bear their own costs.

S.Q./S-112/L Review application allowed.

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