M. Javed Buttar, J.--This appeal, by leave, is directed against the judgment dated 14.5.2001 passed by a learned Judge in Chambers of Lahore High Court, Bahawalpur Bench whereby Regular Second Appeal No. 36 of 1985/BWP, instituted by the deceased appellant Jan Muhammad, now represented by his legal representatives, was dismissed.
2. The relevant facts are that the predecessors of Respondents No. 1 to 12, instituted a suit for possession through pre-emption claiming superior right of pre-emption as being collaterals, joint owners in the khata and owners in the estate which was resisted by the deceased vendee/defendant Jan Muhammad on legal as well as factual grounds. The learned trial Court after framing necessary issues and recording evidence of the parties, vide its judgment and decree dated 18.7.1981, dismissed the suit. On Issue No. 2 qua the superior right of pre-emption, the only issue which has been agitated before us, it was found that plaintiffs were neither collaterals of the vendors nor owners in the village because purchases made by them through revenue mutations which evidenced oral sales in their favour were not recognized in Law because of the applicability of Section 54 of Transfer of Property Act, 1882 in the area, hence they did not possess superior right of pre-emption. The District Judge, Rahimyar Khan vide his judgment and decree dated 24.4.1985 reversed the findings of the trial Court on Issue No. 2. It was held that the plaintiffs were connected with the vendors through common ancestor in the 5th degree and were also owners in the estate by way of inheritance because of Exh.D-46, a mutation of inheritance sanctioned on 31.1.1921, through which Chani, father of plaintiffs, inherited a piece of land from one Diwaya who had died issueless and the said land ultimately devolved on plaintiffs. The suit of pre- emption was thus decreed and, as mentioned above, the second appeal filed by the deceased vendee/defendant Jan Muhammad was dismissed on 14.5.2001.
3. We have heard the learned Sr. ASC for the parties at length and have also seen the available record.
4. The only points urged by the Sr. ASC for the appellants before us are that the learned First Appellate 'Court had erred in upsetting the well-considered judgment of the trial Court, the Pedigree-tables relied upon by the plaintiffs stood rebutted by the documents produced by the appellants, merely the production of Pedigree-tables in the absence of any other corroborative evidence could not connect the plaintiffs with the predecessor of the vendors and that the oral sales in favour of the plaintiffs evidenced by revenue mutations but not registered in accordance with provisions of Section 54 of the Transfer of Property Act IV of 1882, which is applicable with full force in the area, did not make the plaintiffs a co-owner in the village. In support of his contentions, the learned Sr. ASC has placed reliance on Muhammad Naeem and others v. Ghulam Muhammad and others (1994 SCM R 559), Rehman v. Noora through his Legal Heirs (1996 SCM R 300), Muhammad Bakhsh v. Zia Ullah and others (PLD 1971 B.J. 42) and Muhammad Hussain and others v.
Muhammad Khan (1989 SCM R 1026). The learned counsel has also half-heartedly argued that collaterals from the 5th degree, in law cannot be considered as collaterals and cannot claim superior right of pre-emption on the said basis.
5. The learned counsel representing Respondents No. 1 to 12/plaintiffs, while vehemently opposing the appeal, has submitted that the appellants had obtained the leave to appeal from this Court on 27.8.2004 by suppressing material facts and by not producing the complete record, that PW-1 had given all the details connecting the plaintiffs with the vendors through a common ancestor, thus a convincing and un-rebutted evidence was produced which corroborated Pedigree-tables and even Exh.D-22, a document produced by the defendant himself, established that the plaintiffs and the vendors had common ancestor, that under Section 15 of the Punjab Pre-emption Act 1 of 1913, the collaterals, howsoever remote, would have a superior right of pre-emption, if the other side did not possess the same qualification or was not nearer in decree, whereas in the present case, the deceased vendee was an out cider and not related at all, that it is established on the record that the plaintiffs were owners in the estate/village through inheritance vide mutation (Exh.D-46) sanctioned in favour of father of the plaintiffs on 31.1.1921, therefore, even if the oral sales evidenced through mutations in favour of the plaintiffs are ignored, the plaintiffs would still be possessed with the superior right of pre-emption as being owners in the estate and that since the leave to appeal had been obtained by, the appellants from this Court by making false and misleading assertions, this Court would be justified in revoking leave to appeal. The learned counsel, in support of his contentions, has placed reliance on Mst. Farrukh Jabin v. Maqbool Hussain through Legal Heirs and others (2001 SCM R 820), Noor Salam and others v. Gul Baclshah and others (PLJ 2003 SC 44), Jalal Din v. Saeed Ahmad and others (PLD 1979 SC 879) and Udai Chand v. Shankar Lal and others (AIR 1978 SC 765). In the end, the learned counsel for the respondents has submitted that controversy raised before this Court is merely factual in nature, no law point is involved and in petty cases, Supreme Court can refuse to decide even a question of law even after the grant of leave to appeal.
Reliance in this regard, has been placed on Management of P.T.0 v. B.B.L Majalay and others (AIR 1978 SC 764).
6. The argument of the learned counsel for the appellants that the plaintiffs being related to the vendors in the 5th degree cannot be considered as collaterals and cannot claim superior right of pre-emption due to remoteness is baseless. A pre-emptor howsoever remotely connected with the common ancestor of the vendors, can come forward and claim superior right of pre-emption. In Jalal Din (supra) the proposition that if nearer heir does not sue still his remedy being in existence would count as a bar to the suit of remoter heirs was repelled. The documentary evidence produced by the plaintiffs and Exh.D-22, a document produced from the appellants' side, established the relationship of the vendors and the pre-emptors. The contents of the Pedigree- tables were proved by oral evidence. The First Appellate Court as well as Second Appellate Court correctly read the oral as well as the documentary evidence and correctly held that the plaintiffs as well as the vendors were connected with each other through the same ancestor. The learned counsel for the appellants has not been able to point out any misreading or non-reading of evidence in the impugned judgment. The case law relied upon by him does not advance the case of the appellants and is not relevant because in the instant case the plaintiffs had substantiated contents of Pedigree-tables through oral evidence. In Mst. Farrukh Jabin (supra), the contents of Pedigree-tables were also proved by the oral evidence and the findings of fact recorded on such score were not interfered with by this Court. In our view, the findings of fact recorded by two Courts below are unexceptionable. Furthermore, the father of plaintiffs had become owner in the estate through inheritance vide above-mentioned mutation (Exh.D-46) sanctioned on 31.1.1921,which later on conferred the status of co-owners in the estate upon the plaintiffs, because of inheritance from their father, hence reliance of the appellants on the case of Muhammad Bakhsh (supra) is not relevant as the said judgment deals with acquiring of title through sale without the registration of sale-deed in an area where Section 54 of Transfer of Property Act IV of 1882 is applicable, therefore, we need not decide the said legal issue in the present case. We are in agreement with the contentions of the learned counsel for the respondents that in petty cases Supreme Court can refuse to decide even a question of law even if special leave is granted and can revoke the special leave which has been obtained by making false and misleading assertions in the petition but we have not exercised the said discretions and have not gone into the said issues because we thought it fit to proceed with the appeal and decide it on merits.
In view of the above mentioned, we find no merit in this appeal which is dismissed, leaving the parties to bear their own costs.