1. MUHAMMAD AKRAM, J.-This is a petition for special leave from an order dated 23rd May, 1979 passed by the learned Chief Justice of the Peshawar High Court in a pending Regular First Appeal No. 275 of 1976.
2. The relevant facts in brief are that by means of a mutation No. 1389 attested on the 7th of September 1972, the land in dispute, measuring 32 kanals, 11 marlas comprised in Khatra No. 295, Khasra No. 69,69/1 and 469 was sold by Arbad Muhammad Ayub Khan to the petitioner, Haji Said Khan for Rs. 45,000. The respondents brought their suit to pre-empt the sale claiming the superior right, inter alia, as co-sharers. On the 3rd of November 1976, fir suit was d--creed by the Senior Civil Judge Peshawar for pos--session of the land by pre-emption on payment of Rs. 45,000, on the finding that the plaintiffs were the co-sharers in the stilt khata and as such had a superior right to acquire the land. In coming to this conclusion the High Court relied on the testimony of the Patwari Halqa Muhammad Younas (P. W. 1) and a copy of the record of right for 1964-65 (Exh. P. W. 1/1). The witness deposed that the Khata in suit bearing No. 295 was solely owned by Ata Ullah Khan. Out of this he had already sold land bearing Khasra Nos. 272 and 277 to Aya Khan and Faizullah Khan respondents. From this evidence the learned trial Court concluded that plaintiffs were proved to be co-sharers in the suit Khata and had a superior right to pre-empt the sale.
3. The petitioner then went up in Regular First Appeal No. 275 of 1976. While this appeal was still pending, at the hearing on 23-5-1979, the learned Chief Justice passed the impugned order allowing additional evidence to be produced in the appeal at the instance of the plaintiff-pre- emptor.
4. "May be that after the death of Ibrahim Khan his property also passed on to Arbab Attaullah Khan asbas been the case upon the death of Sherdil Khan his son Sher Afzal Khan and the latter's brother Sher Ahmad Khan. But taking into consideration that Ibrahim had sold his hissadari, which I am told is in excess of his entitlement, to the plaintiff-pre-emptor, the entry of the name of Attaullah Khan in the column of ownership as sole-sharer though justified by devolution through inheritance may not destroy the case of the plaintiff/pre-emptor that they are still the co-sharers in the khala on the basis of a sale by a previous co-sharer.
5. Hence this petition for special leave from the order passed by the learned Chief Justice.
6. The learned counsel for the petitioner has also argued that apart from the above, the respondents have failed to comply with the decree passed by the trial Court for the deposit of the pre-amption money. On 29-11-76 the High Court had suspended the order for the deposit for a fortnight only. In spite of this the respondents have failed to deposit the pre-emption money so far and consequently their suit stands dismissed.