MUHAMMAD ISMAIL and another vs BAHADUR and 2 others

1. ' Revision petition under section 115 of Civil P.C. Was against judgment and decree of lower appellate Court dated 8-2-1982, confirming those of the learned trial Court dated 18-11-1979 which, in turn, had decreed pre-emption suit in favour of the respondents subject to payment of Rs,13,000 as the sale price of the land, on or before 21-12-1979.

2. ' By deed of sale registered on 12-7-1975, Ali Muhammad sold 34 Kanals, 2 Marlas of land at Mauza Wan-Bhachran in Tehsil Mianwali to Muhammad Ismail and Khuda Bakhsh for a sum of Rs,13,000.

3. Bahadar, Fateh Sher, and Amir sons of Sher claimed pre-emption in respect of this sale. Superior right of pre-emption was asserted on the grounds of co-ownership in the joint Khata, ownership of agricultural land in revenue estate and the tenancy rights on the land sold. Pre-emption suit was instituted, on 10-7-1976. The vendees-defendants resisted the suit. On 12-7-1976, the trial Court returned the plaint for its representation in the Court of Collector. On 21-11-1976, the order was reversed in appeal by learned District Judge, who found that Civil Court was competent to try the suit. Appropriate issues having been framed and evidence recorded, the trial Court decreed pre- emption suit in favour of the respondents. It was held that as owners of the estate they were possessed of a better right of pre-emption. Petitioners preferred an appeal from the judgment and decree of the trial Court. In course of it, they applied for taking additional evidence to show that they were also owners of the estate and their right was at par with the respondents. Copies of Register Haqdaran Zamin were annexed with the application for additional evidence.' The appellate Court called for reply of the application and fixed it for arguments. Surprisingly, it forgot to notice it and did not decide it finally on merits. As for the appeal itself, it was dismissed on merits.

4. It was maintained that the respondents were possessed of a superior right of pre-emption on the ground of being owners of the estate, which qualification the petitioners did not enjoy. Thereupon, a revision was filed in this Court by the petitioneRs, It was admitted to hearing on 20-3-1982 and has been heard today on merits in presence of learned counsel for the parties.

5. ' No other point, except the findings on issue No,4 relating to superior right of pre-emption was canvassed at the hearing. Pleas of partial preemption, estoppel and non-joinder of necessary parties were not urged by the learned counsel for the petitioneRs, He confined his arguments to the superior right of pre-emption claimed by the respondents and non-disposal of the application for additional evidence filed by the petitioners in the lower appellate Court. It was argued that the respondents produced a Jamabandi for the year 1944-45 to prove their ownership of the land in village, whereas the land sought to be pre-empted by them was sold in 1975. There was a gap of 30 years, which the respondents failed to bridge by giving necessary evidence in support of their ownership of the land in the village. In the above circumstance, they were obliged to put in evidence, an extract from the latest land records to show uptodate position. Learned counsel laid much stress on the non-disposal of the application for additional evidence filed by the petitioners in 'he lower appellate Court. He relied upon cases reported in 1980 CLC 608, PLD 1983 Lah. 349, PLD 1986 Lah. 283, 1993 CLC 334.

6. ' Learned counsel for the respondents defended the impugned judgments of the lower Courts and asserted that they were rightly decided. In view of the order proposed to be made, it was unnecessary to finally address to issue No,4 for holding the existence of right of pre-emption in favour of respondents on score of ownership of land in the revenue estate. Petitioners asserted that they were also owners of the land in the village. They had applied for additional evidence to take copies of revenue papers on record. Admittedly, the lower appellate Court did not decide the application for additional evidence either way. It was bound to decide it finally prior to giving judgment in the main appeal. The application for additional evidence could not be left undecided.

7. Probably, the lower appellate Court was unmindful of its presence on the record and forgot to give decision on it. This led to a clear miscarriage of justice. The result was that the matter required reconsideration by the lower appellate Court.

8. ' Upon this view of the matter, I shall accept the revision petition, set aside the impugned jugdment and decree of the lower appellate Court and remand the case to learned District Judge, Mianwali with a direction to first decide the petitioners' application for additional evidence and thereafter hear and decide the appeal preferred by the petitioners in accordance with the result of his order on the application and the law. There shall be no order as to costs in this Court. Parties shall appear before the lower Court on 26-6-1993.

9. ' Records be returned to the Court below. Appeal shall be finally decided within six months of the receipt of the records by the lower appellate Court.