NOOR FRAZ Versus GHULAM MUSTAFA KHAN

One Muhammad Wali Dad Khan son of Muhammad Karam Dad Khan sold the suit land situate in village Kotki, Tehsil Isa Khel, District Mianwali, in favour of the petitioners for ostensible sale price of Rs.4,875. The respondent Ghulam Mustafa Khan claiming himself to be the collateral of the vendor pre‑empted the sale. He alleged that besides being collateral of the vendor he was also co‑sharer in the Khata and owner in the estate and thus had a superior right of pre‑emption as against the vendees who were strangers. He further alleged that the sale in fact took place for Rs.2,000 but in order to avoid the pre‑emption suit, the sale price was bogusly recorded as Rs.4,875.

2. The petitioners resisted the suit and inter alia pleaded that the respondent was no more the owner in the estate and co‑owner as he has already sold away his entire land in the village. He thus, according to the petitioners, had no superior right of pre‑emption as against them. It was also alleged that the respondent has filed the suit collusively for the benefit of one Ghulam Muhammad son of Muhammad Hayat of Kala Bagh. They claimed to have spent Rs.3,000 on the improvement of the land. They further maintained that the price of Rs . 4, 875 was fixed in good faith and actually paid.

3. Necessary issues arising out of the parties' pleadings were framed and after recording the parties' evidence, the learned trial Court by his judgment dated 30‑4‑1984 came to the conclusion that although the respondent was no more the owner in the estate and co‑sharer in the Khata but being a collateral of the vendor possessed better right of pre‑emption as against the petitioners. It was also held that the vendees had improved the suit land by spending Rs.3,000 and that actual payment of Rs.4,875 as sale price was proved. Consequently the suit of the respondent was decreed on payment of Rs.7,875, which amount was directed to be paid up to 28‑5‑1984.

The petitioners went in appeal against the judgment and decree passed by the learned trial Court, before the learned District Judge, Mianwali, who vide his judgment, dated 8‑7‑1985, concurred with the findings arrived at by the learned trial Court on the questions of superior right of pre‑emption of the respondent and of sale price. He, therefore, dismissed the petitioners' appeal. It is, however, noteworthy that the respondent filed cross‑objections challenging the amount awarded to the petitioners on account of alleged improvement and the learned District Judge vide aforementioned judgment came to the conclusion that it was not proved on the record that the vendees, in fact, have spent Rs.3,000 on the improvement of the suit land. He consequently accepted the cross‑objections and set aside the trial Court's judgment to the extent of awarding of Rs.3,000 to the vendees on account of improvement of the suit land.

4. The aforementioned judgments and decrees passed by the learned trial Court and the learned District Judge have been called in question through the present civil revision.

5. It has been mainly argued on behalf of the petitioners that was not proved that the respondent was a collateral of the vendor. This contention is absolutely devoid of any merit. Besides oral evidence, the respondent produced copy of pedigree‑table before the learned trial Court. The contents of the pedigree‑table fully endorse the respondent's claim that he happens to be the collateral of the vendor Wali Dad Khan. Dost Muhammad, the father of the respondent and Wali Dad Khan, the vendor, are decendants of one common ancestor: It has, however, been noticed that before the learned trial Court, the petitioners did lead evidence in support of their claim regarding improvement of land and of spending Rs.3,000 thereon. The evidence so led by the petitioners had not at all been rebutted by the respondent. He did not even care to question the correctness of the evidence led in this behalf while cross‑examining the witnesses who deposed about it. On this point, the revisions requires consideration and is admitted.

At this stage, Mr. Rafiq Javed Butt, Advocate, has put in appearance on behalf of the respondent. He is accompanied by the respondent himself. He has accepted notice, but at the same time has conceded that the respondent was prepared to pay the cost of improvements amounting to Rs.3,000 and that on this point the respondent did not propose to contest the petition. In the circumstances, the judgment and decree, dated 8‑7‑1985, passed by the learned District Judge, Mianwali, to the extent of accepting the cross‑objections and disallowing the claim amounting to Rs.3,000 on account of improvement of the suit land by the petitioners is set aside, while the lower Courts' judgments to the extent whereby the respondents' suit for possession by pre‑emption on payment of Rs.4,875 was decreed are upheld and to that extent the revision is dismissed in limine. The respondent is directed to deposit the sale price plus the cost of improvement in all amounting to Rs.7,875 less the amount already deposited by him on or before 6‑7‑1987, failing which his suit shall stand dismissed. There shall be no order as to costs.

H.B.T./N‑136/L Order accordingly.