Hajl SAID KHAN vs AYA KHAN AND Another
This petition for special leave to appeal arises from an order passed by the Peshawar High Court in a Regular First Appeal, wherein the High Court allowed the production of additional evidence at the instance of the plaintiff-pre-emptor. The core legal question concerns the propriety of allowing additional evidence during the pendency of a first appeal in a pre-emption suit where the plaintiffs claimed superior rights as co-sharers based on previous sales and inheritance entries in the revenue record. The Supreme Court examined the circumstances of the case, including the concurrent findings of the trial court regarding the co-sharership and the contention that the respondents failed to deposit the pre-emption money within the stipulated time after the suspension order expired. Ultimately, the petition challenges the interim exercise of discretion by the High Court in admitting additional evidence and the alleged failure to comply with the deposit decree. The key principle revolves around the appellate court's power to allow additional evidence and the strict legal consequences of failing to deposit pre-emption money as ordered by the court.
- Can an appellate court allow additional evidence to be produced during the pendency of a Regular First Appeal in a pre-emption suit?
- What are the consequences of failing to deposit the pre-emption money within the time specified after the expiry of a suspension order?
- Does the entry of a sole owner in the column of ownership in revenue records destroy the claim of a pre-emptor asserting co-sharership on the basis of a prior sale?
ORDER
1. MUHAMMAD AKRAM, J.-This is a petition for special leave from an order dated 23rd May, 1979 passed by the learned Chief Justice of the Peshawar High Court in a pending Regular First Appeal No. 275 of 1976.
2. The relevant facts in brief are that by means of a mutation No. 1389 attested on the 7th of September 1972, the land in dispute, measuring 32 kanals, 11 marlas comprised in Khatra No. 295, Khasra No. 69,69/1 and 469 was sold by Arbad Muhammad Ayub Khan to the petitioner, Haji Said Khan for Rs. 45,000. The respondents brought their suit to pre-empt the sale claiming the superior right, inter alia, as co-sharers. On the 3rd of November 1976, fir suit was d--creed by the Senior Civil Judge Peshawar for pos--session of the land by pre-emption on payment of Rs. 45,000, on the finding that the plaintiffs were the co-sharers in the stilt khata and as such had a superior right to acquire the land. In coming to this conclusion the High Court relied on the testimony of the Patwari Halqa Muhammad Younas (P. W. 1) and a copy of the record of right for 1964-65 (Exh. P. W. 1/1). The witness deposed that the Khata in suit bearing No. 295 was solely owned by Ata Ullah Khan. Out of this he had already sold land bearing Khasra Nos. 272 and 277 to Aya Khan and Faizullah Khan respondents. From this evidence the learned trial Court concluded that plaintiffs were proved to be co-sharers in the suit Khata and had a superior right to pre-empt the sale.
3. The petitioner then went up in Regular First Appeal No. 275 of 1976. While this appeal was still pending, at the hearing on 23-5-1979, the learned Chief Justice passed the impugned order allowing additional evidence to be produced in the appeal at the instance of the plaintiff-pre- emptor.
4. "May be that after the death of Ibrahim Khan his property also passed on to Arbab Attaullah Khan asbas been the case upon the death of Sherdil Khan his son Sher Afzal Khan and the latter's brother Sher Ahmad Khan. But taking into consideration that Ibrahim had sold his hissadari, which I am told is in excess of his entitlement, to the plaintiff-pre-emptor, the entry of the name of Attaullah Khan in the column of ownership as sole-sharer though justified by devolution through inheritance may not destroy the case of the plaintiff/pre-emptor that they are still the co-sharers in the khala on the basis of a sale by a previous co-sharer.
5. Hence this petition for special leave from the order passed by the learned Chief Justice.
6. The learned counsel for the petitioner has also argued that apart from the above, the respondents have failed to comply with the decree passed by the trial Court for the deposit of the pre-amption money. On 29-11-76 the High Court had suspended the order for the deposit for a fortnight only. In spite of this the respondents have failed to deposit the pre-emption money so far and consequently their suit stands dismissed.