' JAWWAD S. KHAWAJA, J.---Muhammad Nawaz respondent/plaintiff filed a suit for possession through preemption of the suit-land, which had been purchased by Sher Muhammad petitioner/ defendant. The suit was resisted. The learned trial Court framed 6 issues including that of relief.
Only Issue No.1 is of relevance here and learned counsel for the petitioner has 'also confined his arguments to this issue which has been framed in the following terms:-- "Whether the plaintiff has got superior right of pre-emption qua the defendant? OPP:"
2. The learned trial Court, after considering the evidence on record, has come to the conclusion that the respondent/plaintiff does not possess a superior right of pre-emption as compared t o the petitioner. This finding, however, has been reversed by the learned lower alppellate Court vide impugned judgment and decree dated 18-2-2004.
3. According to the averments in the plaint, the respondent/plaintiff claimed that he had a superior right of preemption on the basis that he was Shafi Sharik, Shafi Khalit and Shafi Jar. This was denied by the petitioner in his written statement.
4. Since the judgments and decrees of the two Courts below are at variance, I have myself examined the evidence, with the assistance of learned counsel for the respondent/plaintiff. He did not press the respondent's superior right of pre-emption on the basis of being co-owner in the Khewat. He confined his argument to the question of contiguity. I have examined the Aks Shajrah (Exh.P.4). This does not, in any manner, indicate that the respondent owned land, which was contiguous to the suit-land purchased by the petitioner/ defendant. The disputed land is in Killa No.2, which, according to the Aks Shajrah, does not have any common boundary with the land of the respondent/plaintiff.
5. In addition to the above, the learned trial Court considered the evidence whereby the petitioner had purchased 8 Kanals of land and had, thus, become owner in the Khata, The mere fact that the said purchase was under attack in a preemption suit, did not detract from the title of the petitioner in the said land. As such, the learned trial Court was justified in treating the petitioner as an owner in the Kjiata on the basis of the earlier purchase of. 8 Kanals of land. The learned appellate Court committed error in law by holding to the contrary.
6. For the foregoing reasons, I set aside the appellate judgment and decree dated 18-2-2004. As a consequence, the judgment and decree of the learned trial Court dated 29-3-2002 stands restored.