' SYED ASGHAR HAIDER, J.-~ This petition is directed against the judgment and decree dated 18-5- 1999 whereby appeal filed by the respondent was allowed and the Pre-emption suit filed by the petitioners dismissed.
2. One Mukhtar Ahmad was owner of land measuring 49 Kanlas and 3 Marla located Mauza Chaura, Tehsil Wazirabad District Gujranwala, he sold it to Khan Muhammad for a consideration of Rs, 1,600,000 through a registered sale- deed, Ghulam Rasool and others filed a suit for Pre- emption, claiming superior right, inter alia pleading groun4 of Shafi Shareek, Shafi Jaar and Shafi Khaleet. The defendant filed written statement, denying the assertions, of the divergent pleadings of the parties, issues were framed, parties were put to trial and thereafter the suit was decreed as prayed for. Aggrieved thereof, the respondent filed an appeal which was allowed and the , hence the present petition by the petitioners/ plaintiffs.
3. The learned counsel for the petitioners at the very outset stated that he has been non-suited by the Lower Appellate Court on the basis of the statement of D.W.l Manzoor Ahmad terming him son of Muhammad Ali, P.W.6, factually this is incorrect. D.W.l is not the son of Muhammad Ali, P.W.6, as wrongly construed by the Lower Appellate Court, thus error has crept into record and, the impugned judgment cannot sustain. He relied on the following precedents:-
(i) Sheikh Fateh Muhammad v. Abdul Aziz PLJ 2003 Lahore 1815.
(ii) Fazal Muhammad v. Ghulam Shabbier 2003 CLC 936.
4. The learned counsel for the respondent has made detailed and comprehensive arguments. He challenged the maintainability of the suit, thereafter pointed out the material discrepancies in the evidence tendered by the plaintiff/ petitioner. He also adverted to the fact that only one person was pursuing the cause, whereas there were six petitioners and this solitary ground was enough to non-suit them, he vehemently stated that the suit was not in consonance with the mandatory provisions of section 13 of the Punjab Preemption Act and adverted to material discrepancies in evidence qua time of performance of Talbs. He relied on the following precedents:-
(i) "Haji Muhammad. Saleem v. Khuda Bakhsh" PLD 2003 SC 315;
(ii) " Amirzada Khan and others v. Ahmad Noor and others" PLD 2003 SC 410;
(iii) "Ruqiya Bibi v. Samiullah"-2004 YLR 2607; 2004 Muhammad Malik and another v. Muhammad Ismail and another YLR 871;
(iv) "Inayat Ullah v. Mst. Begum Bibi and another" PLD 2006 Lahore 267;
(v) "Akhtar Nawaz etc. v. Muhammad Nazir etc." 2005 YLR 77;
(vi) "Walayat Khan v. Muhammad Sharif" 2004 CLC 240;
(viii) "Muhammad Siddique v. Muhammad Sharif and others" 2005 SCMR 1231;
(ix) "Haji Lai Shah and another v Abdul Khaliq and another" 2004 SCMR409;
(x) "Abdul Qayyum v. Muhammad Rafiq" 2001 SCMR 1615;
(xi) "Muhammad Ramzan v. Lai Khan" 1995 SCMR 1510 and
(xii) "Rahimzada v. Muhammad Ayub Khan and others" PLD 2003 Peshawar53.
5. I have heard the learned counsel for the parties and perused the impugned judgment.
6. The basis for non-suiting the petitioners/plaintiffs inter alia was the evidence tendered by the D.W.l and P.W.6 and the discrepancies in their statement, on the belief and assumption by the lower Appellate Court that they were father and son. The learned counsel for the petitioners walked me through the statement of D.W.l and P.W.6, there is similarity of name of father D.W.l and name of P.W.6 (Muhammad Ali) but they are not father and son, as is evident from record because, the age of D.W.l is 50 years, while the age of P.W.6 is 60 years, therefore, obviously they are not father and son.
7. This assertion could not be controverted by the learned counsel for the respondent. Thus, the basis for judgment upon discrepancies and conclusions upon statement of D.W.l and P.W.6 are incorrect and fallacious, this clearly is misreading of evidence, and amounts to material illegality and irregularity, the impugned judgment thus cannot sustain.
8. Resulantly, this petition is allowed, the impugned judgment is set aside, the proceedings would deem to be pending before the lower Appellate Court, which shall proceed to decide the matter in accordance with law on merits upon the evidence available on record. It shall make efforts to decide it expeditiously. No order as to costs.
Caser remanded.