MUHAMMAD SHARIF Versus MUHAMMAD SIDDIQUE
RAJA FAYYAZ AHMAD, J .--- This appeal with the leave of this Court granted on 3-7-2001 has been directed against the judgment dated 10-5-1999 passed by the learned single Judge in Chambers of the Lahore High Court, Lahore, whereby Civil Revision No.578 of 1985 preferred by respondent No.1 was accepted and the impugned judgments/decrees of the learned Courts below were set aside and. the suit for pre-emption filed by the appellant was dismissed.
2. The precise relevant facts of the case are that the appellant instituted suit for possession through pre-emption of laud measuring 2 Marlas described in the plaint sold to respondent No.1 by respondent No.2 through a registered sale-deed, dated 29-7-1979 against a consideration of Rs.8,000 on the stated averments that the appellant/plaintiff and respondent No.2 Sajawal were the co-owners of a piece of land measuring 4 Marlas, on a portion of which, he had constructed a Kotha measuring less than a Marla and for a long time he had been carrying on the business of "Bhat Tandoor" (Bakery oven) but later on, left the business and said premises was rented out by him to respondent No. 1. Subsequently, when he needed the property in question for his personal requirements, respondent No.2 Sajawal in collusion with respondent No. 1 Muhammad Siddique entered into an agreement for the sale of one-half of the share belonging to respondent No.2 (Sajawal) who sold the same through registered sale-deed dated 22-7-1979 to respondent No.1 although the same was constructed by him though he being a co- sharer and the brother of vendor Sajawal had superior right of pre-emption to purchase the same. It was also alleged in the suit that the suit property was in fact sold against the consideration amount of Rs.800 only but to defeat his right of pre-emption a fictitious sale price was shown in the sale-deed.
3. The respondents riled their written statements and resisted the claim of the appellant/plaintiff on various grounds of law and facts including that the suit for pre-emption against the business premises/shop was not maintainable and that the same was constructed by the vendor to whom it belonged, moreover; it was alleged in the written statement by the vendee that he had also improved the property in question by incurring a considerable amount Sajawal respondent also took the plea that the property was partitioned between him and his brother (the appellant/plaintiff) and he had sold the portion of property, which had fell to his share.
4. Out of pleadings of the parties 5 issues were framed by the learned trial Cowl including Issue No.5 relating to the' relief. Both the parties in support of their claims and pleas, produced evidence. On conclusion of evidence and hearing both the parties, the learned trial Court decreed the suit in favour of the appellant/plaintiff on 19-7-1984. On appeal filed by respondent No.1, the decree of the learned trial Court was affirmed by the learned Additional District Judge, Kasur vide judgment and decree dated 16-3-1985. Both these judgments were assailed before the learned High Court by respondent No.1, which as abovesaid, was accepted.
5. The learned counsel for the parties have been heard at length. With their assistance the entire evidence available on the paper book, the impugned judgment including judgments and decrees passed by the learned trial Court and the learned First Appellate Court have been gone through carefully and minutely. The main contest between the parties relates to crucial issue No.2 i.e. "Whether the property is exempted from pre-emption? OPD". The learned counsel for the appellant/plaintiff vehemently contended that the suit property comprising of Kotha measuring about 1 Marla was never used as a commercial unit even by the appellant/plaintiff or the small Bhat Tandoor was established by him for a limited purpose for no financial goals, which he after having abandoned the given activity rented out to respondent No.1. Later on, when it was required by the appellant/plaintiff for his personal need, respondent Sajawal in collusion with-his brother, who happened to be the co-sharer purchased the same through registered sale-deed against a fictitious sale price in order to defeat the right of pre-emption of the appellant/plaintiff. He further argued that no shop ever was constructed or existed on the silt nor even at the time of the sale transaction any shop existed nor any commercial' activity was conducted by respondent No. 1 at the site, hence; the same was not exempted from enforcement of the claim of pre-emption. According to the learned counsel, the evidence on record was rightly appraised in its true respective by the learned trial Court and the first Appellate Court, which recorded concurrent findings of fact not suffering from any legal or factual infirmity to Call for any interference in the exercise of revisional jurisdiction by the learned High Court and; in the estimation of the learned counsel, there has been no legal or factual justification to reverse the findings of fact on the point, by misconstruing the evidence available on record with regard to the Bhat Tandoor or the Kotha could be termed and treated as a shop/commercial unit nor was being used as such; at the relevant time when the sale transaction took place between the respondents. The learned counsel to supplement his viewpoint in the light of evidence has placed reliance on Bhamba Ram and others v. Allah Bakhsh and others AIR 191.5 Lah. 143 and Qazi Abdul Ali v: Abdul Majeed PLD 1982, Lah. 318.
6. Controverting to the above noted contentions, the learned counsel for the respondents submitted that the impugned judgment is unexceptionable and as both the learned Courts below i.e. the learned trial Court and the learned First Appellate Court since misread and misconstrued the material pieces of evidence as to the nature and character of the suit property sought to be pre-empted by the appellant/plaintiff, therefore, in the light of the given evidence the learned High Court appropriately in the exercise of revisional jurisdiction reversed the concurrent findings of facts suffering from serious factual and legal infirmities. According to the learned counsel, the evidence on the point abundantly and unambiguously showed that there was a shop existed on a small portion of the suit-land being used as Bhat Tandoor acid thereafter, throughout had been used and utilized foe a commercial purposes. Hence; was not unable to the enforcement of the claim of pre-emption, inasmuch as from contents of the pleadings of the appellant/plaintiff the sale-deed and the evidence led on the point by the appellant/plaintiff, it could not be said that there was no shop/Kotha built on' the site or being not used throughout for commercial purposes merely because according to the appellant/plaintiff, he initially established Bhat Tandoor in the Kotha. Moreover; according to the learned counsel, it was not even pleaded in the suit that the Bhat Tandoor was not even used for any financial benefit/commercial purposes by the appellant. The entire evidence again during the arguments advanced by Mr. Gul Zarin Kiyani, Advocate Supreme Court and the pleadings of the parties have been read over and considered in the light of the impugned judgment and the conclusion of facts drawn by the learned High Court and the case-law cited by the parties learned counsel in support of their contentions. The learned counsel cited a number of precedent cases on the subject i.e. Bhamba Ram and others v. Allah Bakhsh and others AIR 1951 Lah. 143, Sant Singh v. Gobind Rain AIR 1923 Lah. 209, Wadhawa Mal v. Lachman Das and others AIR 1924 Lah. 213 and Sandhi v. Khair-ud-Din and others AIR 1927 Lah. 328, Municipal Board, Pratabgarh and another v. Mahendra Singh Chawla and others AIR 1982 SC 1493, Ch. Ghulam Ahmed Khan v. Diwan Sheikh Ghulam Qutab-ud-Din and another PLD 1960 Lah. 461, Haji Muhammad Naim v. Mst. Umatur Rasool and. others PLD 1965 Pesh. 57 and Qazi Abdul Ali v. Abdul Majecd PLD 1982 Lah. 318.
7. The learned High Court in the impugned judgment has examined, scanned and scrutinized each material piece of evidence in relation to issue No.2 on which the parties were at contest and has drawn a definite conclusion for reasons based upon the evidence to hold that a Bhat Tandoor was being run in the premises and a portion the Kotha was being used for the purpose of storage of goods and items etc. of Bhat Tandoor, whereas; use of said premises for any other purpose was wanting in the evidence. The contents of the sale-deed, the plaint, the title/caption contents of the suit and all the material pieces of evidence have been taken notice of in the impugned judgment and dealt with in their true perspective by reappraising the evidence on the said point; not considered, construed and .appraised in their true perspective by the' learned Courts below, thus the impugned judgment in our considered view is not open to any exception in the light of the well-established principles laid down by this Court justifying interference into the concurrent findings of facts. The case-law cited by the appellant's learned counsel for the above reasons render. no assistance to support his conclusions in the given facts of the case discussed in the impugned judgment, which does not suffer from any impropriety, infirmity legal or factual to call for any interference by this Court. Thus, for the foregoing reasons, this appeal being without any merit is dismissed, The parties are left to bear their own costs.
M.B.A./M-73/SC Appeal dismissed.