' The brief facts giving rise to the filing of this civil revision are that one Nasrullah sold land measuring 11 Kanals 10 Marlas situate in Khasra Nos.1057 and 1088 which is fully described in the plaint in favour of Niaz Ali petitioner vide Mutation No,369 dated 10-8-1969 for a consideration of Rs.4,600. Mst. Raj Begum predecessor-in-interest of the respondents filed a suit to pre-empt the above said sale on the ground of superior right of pre-emption being the real sister of the father of the vendor. Upon her death, during the pendency of the suit respondents were brought on the record as her L.Rs.
' The suit was contested. The superior right of pre-emption was controverted.
2. From the pleadings of the parties, the following issues were framed:-- Issues
(1) Whether the plaintiffs have no cause of action? OPD.
(2) Whether the plaintiffs are estopped by the conduct and words of their predecessor-in-interest?
OPD.
(3) Whether the suit is barred by limitation?
(4) Whether the plaintiffs have got superior right of pre-emption?
(5) Whether the sum of Rs.4,600 was fixed in good faith or actually paid ? OPP.
(6) If Issue No,5 is not proved then what is the market value of the suit-land? OP Parties.
(7) Relief.
3. After recording the parties' evidence the learned trial Court dismissed the suit vide judgment and decree dated 20-1-1977. The learned trial Court was of the view that even if Mst. Raj Begum being the sister of the father of the vendor had a superior right of pre-emption, the same did not devolve upon the respondents as her legal heirs.
4. An appeal was filed by the respondents. The learned Appellate Court accepted the appeal vide judgment and decree dated 23-1-1980. The learned Appellate Court was of the view that the status of Mst. Raj Begum as Phuphi of the vendor was established on the record and pre-emption being a heritable right, the respondents as legal heirs of Mst. Raj Begum enjoyed a superior right of pre- emption. Having found the superior right of pre-emption in favour of the respondents, the case was remanded to the trial Court only for decision upon Issues Nos.5 and 6, which related to the sale price/market value of the suit-land.
5. This judgment in appeal was initially assailed through a R.S.A. No,377 of 1980. The R.S,A. Was admitted to regular hearing on 23-4-1980, upon the sole contention that Mst. Raj Begum, the original pre-emptor, even if it is found that she was the Phuphi of the vendor, she would not fall within the category even of distinct kindred and therefore, was not entitled to a superior right of pre-emption. When R.S.A. Came up for hearing on 3-6-1996, the learned counsel for the appellant conceded the objection raised on behalf of the respondents that R.S.A. Was indeed not competent and prayed for Conversion of the R.S.A. Into a civil revision. Vide order dated 3-6-1996 the R.S.A. Was allowed to be converted into a civil revision, where after it was registered as Civil Revision No,269-D of 1996 under which nomenclature the same is now under consideration.
6. Before going on to the merits of the present civil revision, it may be necessary to recount that on the same day, when the R.S.A. Was converted into a civil revision, the case was heard on merits and vide judgment dated 3-6-1996 the civil revision was dismissed on the ground that as no decree had been passed in the suit up to 31-7-1986, no decree can be passed thereafter. The reliance was placed upon the case of Government of N.-W.F.P. v. Malik Said Kamal Shah PLD 1986 SC 360.
7. The plaintiff/respondents challenged the said judgment before the Honourable Supreme Court in Civil Appeal No,626 of 1997. During the course of submission before the Honourable Apex Court it transpired that in pursuance of the order of remand dated 23-1-1980, the trial Court had proceeded to pass a decree in favour of respondents on 9-4-1980. It was in this view of the matter that Honourable Supreme Court found the judgment of this Court dated 3-6-1996 to be not sustainable and through the judgment dated 4-1Q-2002, the judgment dated 3-6-1996 was set aside and the matter was remanded to this -Court to decide civil revision afresh.
8. I have heard Mr. Abdul Rasheed Awan, Advocate for the petitioner and Mr. Manzoor Ahmed Rana, Advocate for respondents and have perused the record.
9. At the very outset the learned counsel for the petitioner has conceded that Mst. Raj Begum as paternal aunt (Phupi) of the vendor was not excluded to exercise her right of pre-emption if this fact was established from the record. According to the learned counsel the onus was upon the plaintiffs/respondents to prove:--
(a) That Mst. Raj Begum was indeed as paternal aunt of the vendor.
(b) That being a paternal aunt, even if so proved she was entitled to exercise her right of pre- emption.
10. He has contended that such relationship could only have been proved through the production of the pedigree table and no amount of oral assertion in this behalf was sufficient. The learned counsel for the petitioner relied upon the case of Rehmat Ullah v. Abdul Karim 1994 SCM R 399 in support of his contention.
11. Conversely Mr. Manzoor Ahmed Rana, Advocate for respondents has referred to the statement of the vendor Nasrullah who appeared as P.W.2, who categorically stated that Mst. Raj Begum was his paternal aunt. More importantly reference was made to the statement of Muhammad Hussain, D.W.2, who admitted in unequivocal terms that Mst. Raj Begum was the Phupi of the vendor. The learned counsel for the respondents has also argued that the present civil revision is not competent for another reason. He submits that after the matter was remanded vide judgment and decree dated 23-1-1980 (impugned in this civil revision), the trial Court in post-remand proceedings had decreed the suit of the respondents vide judgment and decree dated 9-4-1980.
He submits that the petitioner, beyond challenging the remand order dated 23-1-1980 has not challenged the decree of the trial Court dated 9-4-1980 in any further proceedings and the said decree would thus amount to have attained finality. It is argued that seen from this perspective, the petitioner is not entitled to maintain the present civil revision.
12. In view of the aforesaid, when the relationship of Mst. Raj Begum with vendor has been admitted by witness of the petitioner himself it is futile for the learned counsel for the petitioner to urge that something more in the shape of a pedigree table was necessary to prove the said relationship. The case of Rehmat Ullah (supra) is distinguishable and cannot apply to the facts of the instant case.
13. The submission of the learned counsel for the respondents that the civil revision is not competent and is devoid of force. It may be recalled that in the first place the suit of the respondents was dismissed by the trial Court vide judgment and decree dated 20-1-1977. On appeal by the respondents, the Appellate Court vide judgment and decree dated 23-1-1980 had conclusively upheld the superior right of pre-emption of the respondents. It will be deemed that the decree in favour of the respondents as far as his superior right is concerned was passed on 23-1- 1980. The matter was remanded to the trial Court only for limited pill-pose of deciding Issues Nos.5 and 6 which related only to the market price of the suit-land. As this judgment of the Appellate Court ice, dated 23-1-1980 is impugned in the present civil revision, the petitioner cannot be non- suited upon this plea of the learned counsel for the respondents that decree dated 9-4-1980 has become final.
14. As a result of the above discussion, it is found that Mst. Raj Begum has succeeded in establishing on the record her superior right of pre-emption and after her death the same rights shall devolve upon the respondents. The learned counsel for the petitioner has not been able to indicate any infirmity or irregularity of procedure in the impugned judgment. There is no merit in this civil revision which is hereby dismissed.
15. This Court is however, not unmindful of the fact that the sale in question pertains to land measuring 11 Kanals and 10 Marlas which was sold as far back as 10-8-1969 for a sale consideration of Rs.4,600. It would indeed be against equity if while awarding a decree for preemption the aspect of the suitable enhancement in the price of the land is not considered. When queried, it was stated from the side of the petitioner that the value of the suit-land is not less than Rs.1,00,000 at present.
The learned counsel for the respondents has not seriously controverted this petition. In such a situation it shall serve the ends of justice, if while maintaining the decree for pre-emption in favour of the respondents the sale consideration is enhanced to Rs.1,00,000 for the demised land. Thus the respondent shall deposit the sum of Rs.1,00,000 before the Executing Court minus the amount already deposited as Zar-ePanjum of the original sale price within the period of two months from the date of this order. Parties to bear their own costs.