Abdul Hameed Dogar J.--This appeal with leave of the Court is directed against the judgment dated 12.11.1999 passed by learned Judge in Chamber of the Lahore High Court, Lahore, whereby Civil Revision No. 1087 of 1987 filed by appellants was dismissed.
2. Briefly, stated, facts giving rise to the filing of instant appeal are that appellants purchased the land in dispute for a sum. of Rs. 13,000/- vide Mutation No. 260. On 27.7.1982 the respondent filed suit for pre-emption on the basis of being co- sharer before the trial Court. The appellants contested the suit by filing written statement wherein they denied the superior right of pre-emption of the respondent as claimed in the plaint. The trial Court framed as many as six issues including relief and after recording the evidence decided the suit on 11.5.1986 while holding that "the suit of the plaintiff/respondent is decreed in his favour against defendants/appellant for Rs. 13,000/, Plaintiff/respondent was directed to deposit the detrital amount minus 1/5th pre-emption money already deposited upto 11.6.1986, failing which his suit shall stand dismissed with costs." Feeling aggrieved, appellants preferred appeal before the Additional District Judge, Mianwali, which was dismissed vide judgment dated 24.6.1987. The said judgment was assailed by the appellants before the learned High Court in the abovementioned civil revision which was dismissed vide impugned judgment.
3. Leave to appeal was granted on 23.7.2001 to consider the contention raised by the learned counsel for appellants that the owner of agricultural land in the estate which though was not assessed to land revenue or in respect of which no land revenue was paid, could still be treated as owner of the estate for the purposes of pre-emption matter.
4. We have heard Sh. Altar Elahi, learned ASC for the appellants and Raja Muhammad Ibrahim Satti, learned ASC for respondents and have gone through the record and proceedings of the case in minute particulars.
5. Learned counsel for the appellants vehemently contended that the learned High Court as well as the learned lower Courts has not appreciated the material brought on record in its true perspective which resulted in miscarriage of justice. He further contended that as per findings of the learned Appellate Court, the land purchased by the appellants was agricultural in nature but the decree of the trial Court against the appellants has been affirmed only for the reason that in the written statement, it has been specifically mentioned that the appellants have improved their status by purchasing the land in the estate.
6. On the other hand, learned counsel for respondent while controverting the contentions of learned counsel for appellants-contended that the impugned judgment does not suffer from any legal flaw and contended that all the three Courts are unanimous about his right of pre-emption.
According to him, the said land measuring 1 kanal was purchased by the appellants for residential purposes, therefore, the same having not been proved to have been assessed to land revenue or that any land revenue was paid qua the same, the appellants could not be held to be owner in the estate.
7. The material point In this case is that appellants in their written statement have not taken the plea that they were also owners in the estate, so they had equal right of pre-emption against the respondent. Simple denial is not sufficient in the circumstances of the present case and evidence led by the appellants in order to prove the improvement in their status by purchase of 1 kanal land has to be ignored under law on the ground that the respondents have proved their superior right of pre-emption as against the appellants. The entries of record of rights proved beyond doubt that respondent are owners in the estate before the sale of the suit land. Appellants on the other hand also claimed their ownership in the estate at the time of filing of the suit as they have purchased one kanal of land on 26.7.1981. The appellants on the relevant date of purchase of suit land had no land in the estate. Whereas respondent was the owner in the estate before the said sale. No doubt the land purchased by appellants was part of agricultural land measuring 8 kanals and it was being cultivated by its owners. After the purchase of land appellants could not prove payment of land revenue. Appellants could not claim themselves to be the owner of the estate for the reason that, it was purchased by them for residential purpose and secondly they paid no land revenue hence could not be treated to be owner of the estate.
8. On the aspect of (owner of estate), this Court in the case of Haji Ahmad Yar v. Allah Ditta & another (PLD 1989 SC 373) and has observed as follows: "Owner of estate means one who owns revenue paying land and not the land which loses its culturable character and is converted into a building site.
While affirming the same view, this Court in the case of Faiz Bakhsh & others vs. Malik Allah Bakhsh (1994 SC-MR 1168) also held that in order to defeat plaintiff's right of pre-emption on being "owner of the estate, defendants should have possessed status of "owner of the estate" at the time of sale sought to be pre-empted and continued to hold that right even at the time of institution of suit and its final decision. Defendant having purchased Sikni land for construction purpose could not attain status of "owner of the estate" so as to defeat suit for pre-emption on that basis. Learned counsel for the appellants though argued at length yet could not refer to any Regality, misreading or non- appraisal of evidence.
9. For what has been discussed above, we are of the considered opinion that impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this Court. Neither there is misreading nor non-reading of material evidence brought on record or misconstruction of facts or law. There being concurrent findings of fact recorded by all the Courts which does not warrant interference by this Court.