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Regular Second Appeal No. 524 of 1966, decided on 6th January, 1987.
‑‑S. 15‑‑Civil Procedure Code (V of 1908), 5.100‑‑Second appeal‑‑Suit for pre‑emption‑‑Plaintiff‑appellant claiming superior right of pre‑emption in respect of sale of agricultural land on grounds of collateral relationship with vendors; division of estate into Patties and Tarafs and ownership of estate‑‑Collateral relationship of appellant with vendors not established by pedigree‑table‑‑No evidence led with regard to the estate having been divided into Patties and Tarafs‑‑Appellant, however, proving himself to be an owner of estate but vendees also proved to be owners of the same estate and, therefore, both appellant‑pre‑emptor and vendees enjoying equal status on date of sale‑‑None of the grounds alleged in plaint could be said to have been proved and dismissal of plaintiff-- appellant's suit in appeal below with the finding that he had not succeeded in proving his superior right of pre‑emption was manifestly correct Appeal dismissed.
Mian Sher Alam for Appellant.
Mian Nisar Ahmad for Respondents.
Dates of hearing: 16th April, 1984 and 6th January, 1987.
On 16‑1‑1964, Fateh Khan, the original appellant filed a suit for possession through pre‑emption of 7 Kanals 18 Marlas agricultural land situated in village Gareera, Tehsil and District Gujrat which had been sold in favour of the four vendees‑respondents by means of Mutation No. 3514, sanctioned on 18‑1‑1963. He based his claim on the grounds of being a collateral heir of the vendors, co‑sharer in the Khata of the suit land and also in the Patti and Taraf of its location and the ownership of the estate. Vendees contested the suit by filing a joint written statement to, while denying his claim, assert also that there were no Pattis or Tarafs in existence within the contemplation of the Punjab Pre‑emption Act and that they themselves are the owners of the estate. The suit was set down to be tried on only three issues (the fourth being that of relief), relating respectively to the superior right of pre‑emption, the sale price and the market value. In his evidence, the plaintiff apart from himself appearing as P. W.2 and producing the Patwari as P.W.1 to prove the five years' average price of sales, also produced three copies of pedigree‑tables as Exhs. P.2 to P.4 and copies of the Jamabandis relating to the year 1959‑60 as Exhs. P.5 and P.6 and closed his case. The vendee‑defendants, in their evidence in rebuttal, in addition to the evidence relating to the sale price, produced a copy of Jamabandi (Exh. D.1) pertaining to the years 1963‑64 regarding 9 Kanals 15 Marlas of land bearing Khasra No. 273, alongwith a copy (Exh. D .3) of Mutation No. 3261 sanctioned on 28‑11‑1959 with regard to sale thereof in their favour and also a copy of another Mutation bearing No. 3262 (Exh. D.2) sanctioned on 27‑11‑1959 with regard to sale of 10 Kanals 16 Marlas of land, which appears to have been produced in the context of proving consideration because it neither relates to the land in suit nor concerns with any of the parties herein. After considering the evidence of the parties, learned trial Judge concluded on the basis of pedigree‑tables that the plaintiff had a superior right of pre‑emption and decreed the suit on 24‑9‑1965.
2. An appeal thereagainst filed by Adalat Khan, one of the vendees, was accepted by a learned Additional District Judge on 27‑4‑1966 upon reversing the trial Courts' finding under issue No. 1 with regard to the superior right of pre‑emption and in consequence dismissed the suit of the plaintiff who has now come up to this Court in this second appeal.
3. Learned counsel contends that superior right of pre‑emption of the plaintiff stands proved on the record on the various grounds alleged in the plaint but learned Judge in the appeal below has not adverted to the other grounds and has proceeded to dismiss the suit by only wrongly reversing the trial Court's finding with regard to the plaintiff's collateral relationship with the vendors. There is hardly any merit in this contention because the plea with regard to relationship cannot stand the test of scrutiny on account of the facts, firstly, that whereas in the plaint it is alleged that the sale had been made by Mehndi, Muzaffar etc., co‑sharers and even a copy of Mutation No. 3514, relating to the sale in suit, has not been furnished on the record nor even that of the Jamabandi of the suit land and, hence, it is not possible to ascertain the particulars of the vendors who, on his own showing of the plaintiff, are more than two persons named in the plaint, even whose other particulars are not available. Secondly, the only witness to depose to the alleged relationship of the plaintiff with the vendors is the plaintiff himself who has neither established the required identity in his statement nor propounded the pedigree therein. and, hence, his mere reliance on the certified copies of the pedigree‑table cannot lead him to anywhere because even if the names of the other vendors are left out of consideration for a while, the plaintiff Fateh Khan son of Maula Dad cannot be connected even to Mehndi and Muzaffar sons of Ahmad Khan mentioned in Exh. P. 3, relating to the years 1959‑60, which traces their ascent to one Allah Bakhsh who is traced upto Jahan Khan in Exh. P.4, relating to the years 1914‑15, who is shown in Exh. P.2, relating to the year 1968, to be a descendant of Taj Muhammad but on the plaintiff's side of the pedigree there is no material available to consider him to be a descendant of Taj Muhammad because neither is there any link established between the plaintiff's father Maulu described in Exh. P.3, without mentioning his father's name, to connect him with the Maulu entered in Exh. P.4 whose descendant is not entered but the name of his ascendant Amir Khan alone is mentioned who again cannot be held to be the same Amir Khan who is mentioned in Exh. P.2 because neither his own son is named therein nor does the name of his brother Attar Khan appear in the pedigree thereafter relating to the years 1914‑15 (Exh. P.4) and hence it can be only of conjecture to say that he may be one and the same person. As regards the other grounds for pre‑emption mentioned in the plaint, there is no evidence even worth the name led with regard to the estate having been divided into Pattis and Tarafs for the purpose of the Pre‑emption Act and, hence, whereas the plaintiffs' name does not appear in the copy Exh. P.6, on the basis of the copy Exh. P.5 he has succeeded in proving himself to, at best, be an owner of the estate but, as against it, the four vendees are also proved on the basis of Jamabandi Exh. D.1 relating to the year 1963‑64 to be the owners of the estate, recorded therein on the basis of Mutation No. 3261 (Exh. D.3) sanctioned on 28‑11‑1959 with regard to Khasra No. 273 and since the sale in suit is mentioned in para. 1 of the plaint to have been made on 18‑1‑1963, therefore, the vendees enjoyed equal status with the plaintiff on the date of the sale. For these reasons, neither of the grounds alleged in the plaint can be said to have been proved and the dismissal of the plaintiffs suit in the appeal below, with the finding that he has not succeeded in proving his superior right of pre‑emption, is manifestly correct.
4. There is no force in this appeal, which is accordingly dismissed. The parties are, however, left to bear their own costs.
S. Q. /F‑2/L Appeal dismissed.
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