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Regular Second Appeal No. 388 of 1977, decided on 26th February, 1983.
‑‑‑S. 4‑‑Civil Procedure Code (V of 1908) S. 100‑‑Pre‑emption suit‑‑Superior right of pre‑emption‑‑ Trial Court coming to conclusion that defendants‑vendees did not enjoy status of being collaterals and consequently decreeing suit of respondents‑‑Courts below appreciating evidence and attaching weight to it and acting within bounds of their Jurisdiction‑‑‑ None of conditions essential for exercise of jurisdiction under S. 100, C.P.C., made out‑‑Appellant unable to show that findings suffered from factual or legal infirmity‑‑View of Courts below based on decision of superior Courts‑‑No justification existing for invoking High Court's jurisdiction in second appeal‑‑Interference declined by High Court.
Riaysat Ali for Petitioners.
Naveed Shahryar for Respondents.
Date of hearing: 26th February, 1983
This second appeal has been filed he appellants who were defendants‑vendees before the trial Court in respect of the sale relating to 115 Kanals of land in District Gujrat. Respondents Nos. 1 and 2 in' this appeal had filed the suit for possession through pre‑emption. They based their case on the strength of being wives of the vendors which per se entitled them to preference. In the written statement, the claim set up by the vendees was that they were collaterals of the vendors and thus entitled to equal rights. This claim was in respect of only the appellants. The fourth vendees admittedly is not a collateral.
2. Before the trial Court the issue of superior right of pre‑emption was not seriously contested and thus the trial Court come to the conclusion that it was almost admitted and proved that the defendants- vendees did not enjoy the status of being collaterals. The trial Court consequently decreed the suit vide judgment, dated 25‑6‑1975.
3. There was an appeal which came up for hearing before the learned District Judge who on 22‑4‑1977 accepted it partly to the extent of the total value of the suit land but concurred with the trial Court in the recording of all other findings.
4. The learned counsel has urged the ground that the appellants are collaterals and they are entitled to inherit equally with respondents Nos. 1 and 2 and thus it being a case of equal rights the suit is liable to be dismissed.
The learned counsel for the appellants in this regard has relied on the statement of D. W.5 who is one‑of the appellants to the effect that the appellants are the paternal‑cousins of the vendors.
The learned counsel for respondents Nos.l and 2 on the, other hand submits that this assertion was challenged in cross‑examination also this has been rebutted through the statement of P. W.2 who has categorically stated that the vendees had no relationship with the vendors.
5. I do not think that the findings of the two Courts below are liable to interference in second appeal as none of the conditions essential for exercise of jurisdiction has been made out. The two Courts below have appreciated the evidence and attached weight to it. In so doing they acted within, the bounds of their jurisdictions. Section 100 of the C.P.C. would thus not stand attracted unless there was misdirection, misreading or mis-appreciation, etc. in performing their functions.
6. The finding of the trial Court that the appellants did not contest issue No. 1 in so far as it related to their being collaterals deserves to be noticed. This finding was further not challenged in the grounds of appeal before the learned District Judge and even during the oral arguments this aspect of the matter that they are collaterals was not stressed and thus has not been noticed in the judgment of the first appellate Court. The plea would thus appear to have been abandoned.
7. In so far as other findings 'are concerned, the learned counsel 1987 C L C 1037 was unable to show that they suffered from factual or legal infirmity. The view of the Courts below is based on the decisions of the superior Courts. There is no justification shown to invoke High Court's jurisdiction) in second appeal. The impugned judgments and decrees thus do not call for interference.
The appeal hereby fails and is dismissed with costs.
M. Y. H./S‑5/L Appeal dismissed.
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