' MUHAMMAD KHALID ALVI, J.---Brief facts of the case are that petitioner along with respondent No.2 filed a suit on 31-7-1997 to pre-empt a sale effected through Mutation No.2340 attested on 11-6- 1997 in favour of respondent No.l. It was claimed by the plaintiff that on 18-7-1997 at 8:00 AM when he was present in his house Muhammad Aslam P.W.4 informed about the fact of sale in the presence of Khan respondent No.2 and Ghulam Abbas P.W.5. Both the plaintiffs immediately claimed their pre-emptive right in order to perform their Talb-iMuwathibat. Thereafter, on 31-7-1997 notices were sent for performance of Talbi-Ishhad. Claim of the petitioner and respondent No.2 was that they are co-sharers in the disputed Khatas i.e. Khata No.125 and Khata No.126 as against respondent No,1 and have thus superior pre-emptive right. The suit was contested by respondent No.1. The learned trial Court after recording evidence dismissed the suit holding that since the petitioner had obtained copy of Jamabandi Exh.P.5 on 14-7-1997, therefore, he had the knowledge of sale, therefore, performance of Talb-iMuwathebat on 18-7-1997 and issuance of notice on 31-7- 1997 were false and therefore, both the Talbs were not performed. It was also held that petitioner and respondent No.2 have no competitive superior right than respondent No.1 and the suit was resultantly dismissed vide judgment and decree dated 25-2-2004, which was assailed by the petitioner and respondent No.2 through an appeal. During the pendency of appeal respondent No.2 not only withdrew from suit but also from his appeal and disassociated himself from the case.
Learned appellate Court, however, vide judgment and decree dated 25-1-2006 dismissed the appeal upholding the judgment of the learned trial Court. Both these judgments and decrees are being assailed through the instant civil revision.
2. It is contended by the learned counsel for the petitioner that although copy of Jamabandi Exh.P.5 was obtained by the petitioner on 14-7-1997 but this copy does not contain any endorsement with regard to the sale in dispute through Mutation No . 2340 dated 11-6-1997, therefore, obtaining of such copy cannot give rise to a presumption that petitioner had acquired knowledge of sale on 14- 7-1997.
3. It is next argued that petitioner had filed an application under Order XLI, rule 27, C.P.C. Before the learned appellate Court contending therein that petitioner's father Taja and mother Naimat Bibi were owners in disputed Khata and had died before the sale, as a result of their death prior to the sale petitioner had become owner in disputed Khatas but this application was dismissed without any justification.
4. On the other hand, learned counsel for respondent No.1 has opposed the arguments advanced by learned counsel for the petitioner.
5. I have considered the arguments of the learned counsel for the parties.
6. Exh.P.5 the Jamabandi was undoubtedly obtained by the petitioner on 14-7-1997 but this document does not contain any endorsement which could indicate that the property in dispute has been sold through the impugned Mutation No.2340, therefore, it cannot be presumed that petitioner had acquired knowledge of sale on 14-7-1997. It is possible that the petitioner had obtained copy of the said document for any other purpose, therefore, findings of the two courts below to this extent are not correct and, are accordingly set aside.
7. Exh.P.5 is Jamabandi for the year 1993-94 with regard to Khata No.125 in which respondent No.2 is mentioned as a co-sharer, who has already withdrawn from the suit. Petitioner is, however, not recorded as owner in this Khata. Exh.P.6 is the Jamabandi for Khata No.126. In this document as well petitioner is not recorded as an owner, however, Taja son of Sultan father of the petitioner is recorded as an owner. There is nothing on record to show whether said Taja is alive or dead and whether he died prior to the sale or after the sale. Learned counsel' for the petitioner has also not placed on record the application under Order XLI, rule 27, C.P.C. So as to indicate what was the actual case of the petitioner seeking permission to lead additional a evidence. In these circumstances, findings of the two courts below with regard to the superior right cannot be interfered. Resultantly, this petition has no merit and is accordingly dismissed.