MUHAMMAD KHALID ALVI, J.-- Brief facts of the case are that the respondents purchased property in dispute through registered sale-deed dated 8.4.1973. The same was sought to be pre-empted by the petitioner by way of filing suit on 5.4.1976. The claim of the petitioner was that he has superior right of pre-emption as against the respondents being owner in the estate and co-sharer in the disputed Khatas. The suit was contested by the defendants/respondents which was decreed by the learned Trial Court vide judgment and decree dated 13.5.1985. The respondents challenged the same through an appeal which was dismissed vide judgment and decree dated 29.4.1987. it was further assailed before this Court through Civil Revision No. 843/1987 which was allowed and the case was remained vide order dated 23.10.1995. After the remand the learned Trial Court again decreed the suit vide judgment and decree dated 5.10.1996. Respondents appeal was allowed by the learned Appellate Court vide judgment and decree dated 13.3.2001. The same was being assailed through the instant civil revision. The only issue involved in the instant case is regarding the superior right of the Petitioner/plaintiff. All other issues already stand abandoned by the parties before the lower forums.
2. It is contended by the learned counsel for the petitioner with reference to Ex. P5 registered sale- deed dated 19.8.1969 and Ex.PH mutation No. 685 attested on 15.9.1969 that the petitioner has become owner in the disputed Khatas through the said documents much before the sale in dispute. He has relied upon Ex. P.I 1 and Ex.P13 jamabandis indicating the petitioner to be owner in the disputed Khata. it is thus concluded that the learned Appellate Court failed to consider the said documents which clearly establish that the petitioner is co-sharer in the disputed Khata.
3. It is next argued that the learned Appellate Court, only in two lines observed that the respondents, are collaterals of the vendors without considering the effect of the evidence produced by the respondents.
4. On the other hand, learned counsel for the respondents frankly conceded that the documentary evidence i.e. Shajra Nasab produced by the respondents do not clearly connected the respondents/vendees with the vendors. However, he argued that the collateral ship/relationship can be established through oral evidence as well. Relies on 2004 SCM R 1693, 2001 M LD 436, 1999 M LD 1723, 1991 M LD 2008, 1991 M LD 2015, 2004 CLC 555. Relying on the statement of DW.3, 5 and 6, it is contended that the collateral ship of the vendors with the respondents vendees is established from the statement of said witnesses which goes unrebutted and their statement could not be settered by the plaintiff in cross-examination.
5. It is further argued that description of the land given in the plaint with respect to Khata Nos. 41/38 and 45/42 is incorrect and is not in accordance with the description given in the-sale-deed, therefore, it is concluded that on account of this discrepancy the suit shall be deemed to be one of partial pre-emption.
6. With reference to a document Ex. P7 which is Parcha Khatuni of the land allotted to the petitioner after consolidation it is contended that the said land is not assessed to land revenue, therefore, in view of the law laid down by this Court in 1990 CLC I 819 and 1991 CLC 127, on the basis of such land in a pre-emptor cannot claim to be owner of estate thus will have no right of pre-emption.
7. After the consolidation, the land falling in the disputed Khatas was charged with another land having different Khasra numbers therefore, the petitioner was required to have established his superior right of co- shareship in the newly allotted Khasra numbers after consolidation.
8. It is next argued that the petitioner had not claimed his right of ownership in the estate before lower Appellate Court nor the same is claimed by petitioner before this Court as the same has not been mentioned as one of the grounds in the memo, of revision.
9. As a right of reply learned counsel for the petitioner contends that the discrepancy in the description of Khata numbers is not attributable to the petitioner, in fact the detail given in the plaint is in accordance with Jamabandi pertaining to the year 1965-66 Ex. P1 which is the same which is detailed in the said Jamabandi, in fact the scribe of the sale-deed mistook the numbers of the Khata numbers written in vernacular in the Jamabandis. Even otherwise, if there is such discrepancies, the same was not objected by the respondents at any point of the and as last submission it is argued that such a mistake can at the most be termed as clerical error and nothing more, it is next submitted that in Parcha Khatuni Ex. P7 there is no column for the land revenue, therefore, absence of such entry does not establish that the land detailed in the said document is not agricultural land, it is lastly argued with reference to Ex.20 Jamabandi pertaining to the year 1991-92 that the petitioner continue to be owner in the estate.
10. I have considered the arguments of the learned counsel for the parties.
11. The plaintiff/petitioner has based his claim on two fold superior pre-emptive right. First that he is co-sharer in the disputed Khata and secondly he is owner of the estate. The petitioner has successfully established on record through Ex. P5 registered sale-deed dated 19.8.1969, consequent mutation Ex.PH and Jamabandi Exs.P12 and P13 that he was owner in the disputed Khata before the sale. Incidentally before first pre-emption decree in his favour on 13.5.1985, consolidation had taken place and the land falling in the disputed Khata had changed its physical place and acquired Khasra Nos. 578, 575, 580 and 563 measuring 25 kanals. Whereas before consolidation the land in dispute was 23 kanal, 13 marlas. Therefore, in order to maintain his superior right as a co-sharer at the final stage of decree the petitioner was required to have established on record that he was having some share in the new Khasra Nos. Of the property in dispute. Since there is no such evidence, therefore, the petitioner cannot be held to be a co- sharer in the new disputed Khatas/khasras in view of law laid down by the Hon'ble Supreme Court reported as 1995 SCM R 1385 (Hasil and another Vs. Karim Hussain Shah and others).
12. However, as a result of consolidation the petitioner would remain an owner of the estate, which status cannot be denied. Objection of the Learned counsel for the respondents that land owned by the petitioner after consolidation is not land revenue paying land, therefore, on the basis of such ownership petitioner not entitled to superior pre-emptive right, is without any substance. Firstly this objection was never raised by the respondents at any stage before the lower forums, secondly the documents Ex. P7 relied in support of this argument does not contain any column for land revenue and 3rdly in view of of a D.B. Judgment of this Court reported as 2003 CLC 1073 merely on the ground that some land is not assessed to land revenue, its agricultural status does not diminish.
For the foregoing reasons it is held that petitioner is an owner of the estate.
13. Although the respondents have not taken a specific plea in their written statement that on the basis of being collaterals of the vendors they have a superior right as against the Petitioner/plaintiff, but still as a matter of defence they could establish such relationship through evidence. Learned counsel for the respondents had frankly conceded that the documentary evidence i.e. Shajra Nasabs tendered in evidence by him do not connect the respondents with the plaintiffs. Undoubtedly relationship can be established through oral evidence, but it has to be very clear and unambiguous, in this connection, learned counsel has referred to the statements of DW3, DW5 and DW6.
Statement of DW3 frames the following pedegritable:- ((Table Start))DW3 Wali Muhammad Ali Muhammad Jalal Din Din Muhammad Ahmad Din Younas etc. Vendor Ismail Muhammad Hussain etc. Vendees Statements of DW5 and 6 makes out the following pedegritable:-- DW5 and DW6 Yousaf Azam Charagh Din Nabi Bakhsh Amar Din Ali Muhammad Jalal Din Muhammad Ahmad Younas etc. Vendors Ismail Muhammad Hussain etc. Vendees((Table End))
DW3 in his examination-in-chief has stated that Jalal Din and Ali Muhammad had a common grandfather but his name is not mentioned, while according to the statement DW5 and DW6 the said two persons have no common grandfather. DW3 in his cross-examination stated that Ali Muhammad is son of Wali Muhammad while DW5 and DW6 in their examination-in-chief stated the parentage of Ali Muhammad as Nabi Bukhsh. DW3 is Muhammad Younas one of the vendors while DW5 Muhammad Hussain is one of the vendees. There being material discrepancies in the pedigree links, therefore, on the basis of such evidence the respondents could not be held to be collaterals of the vendors. Unfortunately the learned Appellate Court did not properly examine and evaluate the evidence.
14. The discrepancy of the property of Khatas No. 41/38 and 45/42 is misreading of the correct numbers by the scribe of the impugned sale-deed from Jamabandi Ex. P1 from which the said numbers were taken, therefore, this objection has no merit.
15. Objection that the petitioner had not claimed his superior right on the basis of being owner of the estate and has abandon the same before the lower Appellate Court and before this Court is without any substance. This pre-emptive right is even mentioned in the narration of facts of the present revision and vehemently argued by the learned counsel before this Court.
16. For what has been stated above, this civil revision is allowed, the judgment and decree passed by the learned lower Appellate Court is set aside and that of the learned Trial Court is restored. No order as to costs.