KAILA KHAN Versus YASIN

ZIA MAHMOOD MIRZA, J.--- Petitioner seeks leave to appeal against the judgment of-the Lahore High Court dated 22-12-1993 dismissing his appeal (RSA No. 329 of 1974). '

2. Facts relevant for the disposal of this petition, briefly stated, are that Muhammad son of Bakhra sold his land measuring 46 Kanals to the present petitioner for a sum of Rs.13,800 vide Mutation No. 1538 sanctioned on 31-3-1970. Vendor's son Yasin (who has since died and is represented by his legal heirs) pre-empted the sale by filing a suit claiming superior pre-emptive right on the ground that he was the real son of the vendor; a co-sharer in the joint Khata and an owner of the estate. The suit was contested by the petitioner. Learned trial Court after framing necessary issues arising from the pleadings of the parties and recording the evidence adduced by the parties dismissed the suit on 21-2-1974 holding that the plaintiff failed to prove his relationship with the vendor. The plaintiff preferred an appeal which was allowed by the learned District Judge who vide his judgment dated 11-7-1974 decreed the plaintiff's suit holding on the basis of evidence on record particularly the birth entry of the plaintiff's daughter Exh.P5 wherein the name of the plaintiff's father was also mentioned that "the appellant is son of Muhammad vendor". Issue No.3 regarding superior right of pre-emption was accordingly decided in favour' of the plaintiff.

3. Aggrieved of, the judgment and decree of the learned District Judge, petitioner preferred a second appeal in the High Court which, as stated above, was dismissed by a learned Single Judge of Lahore High Court vide the impugned judgment. It appears that the only point raised by the Petitioner in the High Court was the relationship of the plaintiff with the vendor. The learned Judge after discussing the evidence led by the parties upheld the finding of the lower Appellate Court regarding the relationship of the plaintiff with the vendor. It was noted by the learned Judge that the plaintiff appearing as his own witness had deposed that he was the son of the vendor but he was not cross-examined on this point nor was he given any suggestion that tie was the son of one Bhora as was alleged by the petitioner. According to the learned Judge "Absence of clear cross-examination on the point of relationship asserted in examination-in-chief led to a clear inference that the defendant did not question the correctness of the plaintiff's assertion that he was son of Muhammad vendor of the land". It was observed by the learned Judge that "Exh. P-5 also gave support to the relationship of the plaintiff to the vendor. On record, there was preponderance of evidence to prove plaintiff's relationship with the vendor".

4. We have heard the learned counsel for the petitioner. He has not been able to point out any infirmity in the findings recorded by the learned District Judge and upheld by the High Court which findings as noted hereinabove were supported by the evidence on record. It may pertinently be observed that the issue of relationship of the plaintiff with the vendor was purely one of fact which was found in his favour by the 'learned District Judge as also by the learned Judge of the High Court and the findings of the two learned Courts have not been shown to suffer from any misreading or non-reading of evidence. That being so, no case is made out for interference by this Court. This petition is accordingly dismissed.

A.A./K-301/S Leave refused.