RASHID KHAN vs MUHAMMAD ALI KHAN
This petition for leave to appeal arises out of a pre-emption matter where the respondent filed a suit for possession of land through pre-emption, claiming superior rights as a co-sharer and owner of contiguous property. The trial court decreed the suit in favor of the respondent, and the lower appellate court as well as the Peshawar High Court dismissed the petitioner's subsequent appeal and civil revision respectively. The core legal question before the Supreme Court was whether the petitioner had successfully improved his status as a co-sharer prior to the institution of the suit through an exchange of land. The Supreme Court held that the petitioner failed to prove the alleged exchange through reliable documentary evidence such as Khasra Girdawari, and noted that all three lower courts had concurrently decided the question of fact against the petitioner. Consequently, the Supreme Court dismissed the petition, affirming the concurrent findings of the lower forums regarding the unproven status of the exchange.
- Whether oral evidence alone is sufficient to prove an exchange of land for the purpose of improving pre-emption status without corroborating documentary evidence like Khasra Girdawari?
- Can concurrent findings of fact by three lower courts regarding the failure to prove an exchange be interfered with in a petition for leave to appeal?
- Does a defendant claiming equal pre-emption rights based on an exchange bear the burden of proving such exchange satisfactorily?
ORDER
1. ' S. USMAN ALI SHAH, J.--Leave to appeal has been sought by the petitioner against the judgment of the Peshawar High Court D.I. Khan Bench dated 1-11-1989, arising out of a pre-emption matter, wherein Muhammad Ali Khan plaintiff/respondent brought a suit for possession through pre- emption of the suit land measuring 19 kanals 3-1/2 marlas situate at village Ameen Mughul Khel, Tehsil and District Bannu, before the Senior Civil Judge, Bannu, claiming himself to be the co-sharer and the owner of contiguous property and also got the rights of immunities an appendages regarding the discharge of water etc., whereas the defendant/petitioner has got no such rights.
2. The suit was contested by the defendant/petitioner and denied the allegations of the plaintiff/ respondent. The learned trial Judge framed contesting issues and after recording the evidence of the parties, decreed the suit of the plaintiff/respondent in his favour, on payment of Rs, 1,26,390 vide his order dated 2-11-1986. Appeal of the petitioner before the Addl. District Judge, Bannu failed on 19-7-1987 and thereafter his civil revision in the High Court was also dismissed on 1-11-1989. Hence this petition for leave to appeal.
3. ' The only question urged by learned Advocate-on-Record in support of this petition is that on the basis of exchange of 2 kanals and 11-1/2 marlas in the suit Khata, the petitioner improved his status before the institution of the suit and he thus being the co-sharer in the suit land, got equal rights of pre-emption with that of the respondent. In order to prove the possession of the exchange land, oral evidence was produced by the petitioner and no Khasra Girdawari of the Patwari or any other documentary evidence in support of his claim were produced by him to prove the exchange. The learned Addl. District Judge has calculated that the area after the sale left with Khan Gul petitioner for exchange, comes to an area of 10-1/2 marlas, whereas the exchange deed shows 2 kanals 11-1/2 marlas. According to the learned Advocate-on-Record the calculation so made by the Addl.
4. District Judge is not correct and is disputed. Anyhow, the exchange is not proved and all thee three Courts below have concurrently decided this fact in favour of the respondent.
5. ' Under the circumstances, we find no merit in this petition, and it is accordingly dismissed.