SHEIKH AZMAT SAEED, J.---This R.S.A. Is directed against the judgment and decree of the First Appellate Court, dated 25-10-1987 whereby the appeal filed by the appellants was dismissed by the learned - Additional District Judge.
2. The facts necessary for the adjudication of the lis at hand are that the respondents filed a suit for possession through pre-emption in respect of the suit-land on 23-2-1973 pertaining to a transaction of sale dated 5-4-1972 in favour of the appellants. Claim of the respondents was that they had a superior right of pre-emption as they were brothers of the vendor while the appellants were stranger. The learned trial Court decreed the suit on 22-4-1977. The appellants challenged the same by way of an appeal which was dismissed by the First Appellate Court vide order impugned dated 25-10-1987.
3. On 4-11-1997, this Court remanded the case to the First Appellate Court, which order was assailed and the august Supreme Court of Pakistan by accepting Civil Appeal No.698 of 1999 by means of judgment dated 22-9-2004, remanded the captioned appeal to this Court for decision afresh on merits.
4. The learned counsel for the appellants has contended that the respondents did not have a superior right of pre-emption in terms of section 15 of the Punjab Pre-emption Act, 1913 and it has been argued that as the vendor had sons who would inherit his estate, therefore, the respondents who were brothers of the vendor was excluded from the succession, therefore, would not be entitled to inherit from the vendor and therefore, had no right of pre-emption. It has been further contended that respondents were estopped by their own conduct from pre-empting the sale, inasmuch as, it is alleged that they were present at the time when the transaction was finalized in favour of the appellants.
5. The learned counsel for the respondents strenuously controverts the contentions raised on behalf of the appellant.
6. The counsel for the parties have been heard and record perused.
7. That as regards the first contention of the learned counsel for the appellant, I am afraid the same cannot be accepted. This controversy has been finally decided and adjudicated upon by the Supreme Court of Pakistan in various cases holding that the superior right of pre-emption in terms of section 15 of the Punjab Pre-emption Act, 1913 is to be determined in the order of succession in between the contesting parties. If there is a successor who is higher in order of succession but does not pre-empt the sale, status of such person is irrelevant and does not debar or exclude any other person from agitating his right of pre-emption even if he is lower in the order of succession. The term "order of succession" under section 15 of the Punjab Pre-emption Act, 1913 means an order under which persons inter se would be entitled to inherit, and if a person nearer in order of succession does not seek to pre-empt the sale, the B person next in succession is entitled to do so, and such person shall have the superior right of pre-emption as opposed to an utter stranger.
Such is the dictum of law laid down by the august Supreme Court of Pakistan in the cases reported as Jalal Din v. Saeed Ahmed and others PLD 1979 SC 879 and Muhammad and another v.
Muhammad Yar and another PLD 1986 SC 231.
8. As regards the second contention, there is a concurrent finding of fact that the respondents are not estopped from pre-empting the sale in question. Even otherwise, there is no documentary evidence produced by the appellant to establish the presence or involvement of the respondent in the transaction pre-empted. The appellants rely solely on oral assertions and that too of their close relatives. Even otherwise, mere presence of a party at the time of transaction subsequently pre- empted does not bar the suit under the Punjab pre-emption Act, 1913. I am fortified in this view by the judgments reported as Jam Pari v. Muhammad Abdullah 1992 SCM R 786. No further ground was urged by the learned counsel for the appellant.
9. As a sequel of the foregoing facts, circumstances and the reasons, I do not find any merit in this appeal and dismiss the same accordingly.