' FAQIR MUHAMMAD KHOKHAR, J.--- The petitioners seek leave to appeal from judgment and decree, dated 7-4-2000, passed by the Lahore High Court, Multan Bench, in R.S.As. Nos.24 of 1992 and 31 of 1992.
2. The respondent No,3 by registered sale-deed, dated 4-11-1978, sold away the suit-land measuring 75 Kanals and 7 Marlas in favor of the respondents Nos.1 and 2 for consideration of Rs,8,000. Late Umar Din, the predecessor-in-interest of the petitioners, instituted a suit for possession of the suit-land through pre-emption claiming to be a collateral of the vendor, co- sharer of the suit-land, owner in the estate and on basis of contiguity. The suit-land was re- conveyed in its vendor, the respondent No,3, by virtue of a consent decree, dated 24-1-1980. The Civil Judge, Layyah, framed necessary issues on the divergent pleadings and recorded evidence of the parties. The trial Court decreed the suit of the petitioner, by judgment and decree, dated 3-2- 1983. The appeal of the respondents thereagainst was accepted by an Additional District Judge, Layyah, by judgment and decree, dated 13-2-1984, and the case was remanded to the trial Court for re-writing judgment on all the issues. The trial Court framed an additional. Issue on 3-4-1985 and recorded evidence thereon. The suit of the petitioners was dismissed by the trial Court, by judgment and decree, dated 24-5-1988. However, his appeal was accepted by the District Judge, Layyah, on 12-12.1988 and the case was again remanded to the trial Court with the direction to decide the suit afresh in terms of the earlier remand order, dated 13-2-1984 without taking into consideration the additional issue and the additional evidence. Thereafter, the trial Court decreed the civil suit of the petitioners on 1-11-1989 by determining the sale price at Rs,8320. The respondents i,e, vendees and the legal heirs of vendor Ghulam Muhammad alias Gama preferred separate appeals which were dismissed by the Additional District Judge, by judgment, dated 6-6- 1992. Therefore, the respondents Nos.4 and 2/vendees preferred R.S.A. No,24/1992 and the legal heirs for the respondent No,3 Ghulam Muhammad, the vendor, preferred R.S.A. No,31 of 1992. A learned Single Judge of the High Court, Multan Bench, by the impugned judgment, dated 7-4-2000 allowed R.S.A. 'No,24 of 1992 of the vendees, the respondents Nos.1 and 2 and dismissed R.S.A. No,3 of 1992 of the legal heirs of vendor Ghulam Muhammad, the respondent No,3. Consequently, the civil suit filed by the petitioner pre-emptor was dismissed. Hence this petition for leave to appeal by the legal heirs of the pre-emptor, Umar Din.
3. The learned counsel for the petitioners argued that concurrent findings of fact recorded by the trial Court as affirmed by the First Appellate Court could not be reversed by the High Court in the absence of any misreading/non-reading of the material evidence or illegality. It was next contended that the High Court had erred in law by placing reliance on a pedigree table (Exh.D-4) which was only a part of the original document and did not reflect the true relationship of the parties. It was lastly submitted that the High Court failed to consider the impact of the documentary evidence Exhs.P-6, D-2 and D-3 coupled with the statements of the petitioner and the vendor in their proper perspective.
4. On the other hand, the learned counsel for the respondents submitted that the High Court had justifiably taken the view that the pedigreetable (Exh.D-4) was misread by the First Appellate Court by wrongly mentioning the name of Ghulam Muhammad as father of Khair Din and Pir Bakhsh. In other respects it had been correctly reproduced in para.7 of the judgment of the First Appellate Court. It was further contended that respondents Nos. 1 and 2 were the real paternal grandsons of Noor Muhammad who was the real brother of Ghulam Muhammad alias Gama, the vendor.
Therefore, they would exclude the petitioner pre-emptor Umar Din, son of Peer Bakhsh, predecessor-ininterest of the petitioners, in order of succession.
5. We have heard the learned counsel for the parties at length and have also carefully perused the available record. The pedigreetable (Exh.P.6) drawn on the Mutation No,511 attested on 12-1-1962 shows that Noor Muhammad and Gama the vendor) were the sons of Khair Din who was real brother of Pir Bakhsh, the father of the petitioner-preemptor Umar Din. The document (Exh.D-4), another pedigreetable of the year 1979-80 also indicates that Noor Muhammad and Ghulam Muhammad were brothers and that Wali Muhammad was son of late Noor Muhammad and father of the vendees, the respondents Nos.1 and 2. A similar position is reflected by pedigreetable (Exh.D- 1/4). Once identity of Ghulam Muhammad alias Gama was established by evidence, it would hardly make any difference whether he was mentioned as Ghulam Muhammad at one place and as Gama at another place of the pedigreetable. The vendees-respondents Nos. 1 and 2, being nearer to the vendor Ghulam Muhammad alias Gama in order of succession, .Possessed a superior right of pre-emption vis-a-vis the pre-emptor petitioner in respect of the sale of the suit-land.
Section 15(b) of the Punjab Pre-emption Act, 1913, lays down that the right of pre-emption in respect of agricultural land shall vest in the person, in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold. The petitioner failed to demonstrate as to how late Umar Din predecessor-in-interest, would have been entitled to inherit the suit-land in preference to the respondents Nos.1 and 2 in the event of death of vendor Ghulam Muhammad in order of succession.
6. A similar question was earlier examined by superior Courts in some cases. In Mst. Raz Khanum Bibi v. Nazir Ahmad and others 1985 SCM R 1725 at full Bench of this Court has held that the words "in order of succession in section 15 of the Pre-emption Act would mean that under Islamic law if there is a contest between "sharers" or in a given case some "sharers" or some "residuaries", who, for example, succeed simultaneously and no one excludes the other and each succeeds up to the extent of his share, then as the order of the succession is the same and none succeeds prior and in preference to the other, the suit will fail if the pre-emptor and the vendee are heirs of the above categories. It has been further held that the right contemplated by section 15(b) of the Act was to vest in persons concerned "in order of succession" which simply means the order in which persons inter se would be entitled to inherit. Consequently, there is no scope for introducing the concept, if it can be so termed, "propinquity of relationship". The order of succession is to be determined with reference to the Personal Law of the parties and when that has been done the person entitled to succeed in order of succession is the person first entitled to pre-empt. If the nearest in order of succession does not seek to pre-empt, then, the person next in succession may do so until all the heirs in succession are exhausted. In Karim Bakhsh and others v. Jahandad Khan and others 74 P.R.
1906. It was held that the expression "in the order of relationship which was the term then existing had no reference to degree of propinquity but was equivalent to "order of succession". The Privy.
Council in Sabz Ali Khan v. Khair Muhammad Khan AIR 1922 Privy Council 139 ILR 3 Lahore 48 had the occasion of construing the provisions of section 12(a) of the old Punjab Pre-emption Act (11 of 1905).
It was held therein that under section 12(a) of the Act the whole line of heirs of the vendor and not merely the nearest heir at the time of sale, had the right of pre-emption in respect of agricultural land. The priority of the right between the claimants must be determined according to the order of succession. In our opinion, the view taken by the High Court is plainly correct to which no exception can be taken. The impugned judgment does not suffer from any legal or factual infirmity so as to warrant interference by this Court.
6. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.