' TASSADUQ HUSSAIN JILLANI, J.--- Leave is sought against the judgment, dated 15-12-2000 passed by a learned. Judge of the Lahore High Court vide which respondents-defendants' R.S.A. No,131 of 1970 was allowed and the concurrent judgments and decrees of the trial Court and of the Additional District Judge were set aside and petitioner's suit for pre-emption was dismissed.
2. Facts in brief are that petitioner-plaintiff pre-empted the sale of the suit-land claiming superior right of pre-emption being co-sharer in Khata, owner in the estate and her kinship with the vendor.
The suit was contested. The learned trial Court vide its judgment and decree, dated 13-4-1969 decreed the suit which was upheld by the learned Additional District Judge in appeal vide the judgment and decree, dated 27-1-1970. The learned High Court, however, set aside the concurrent judgments and decrees and dismissed the suit as it was of the view that the suit was not properly instituted as the plaint had not been signed by the plaintiff, that the plaintiff did not appear during evidence; that the Attorney who appeared on her behalf did not have the authority to either file the suit or make a statement in Court in the said suit; that the suit was hit by partial pre-emption; that the claim of the plaintiff that she was owner in the estate is factually incorrect as the land owned by her (in terms of Jamabandi Exh.P.1) was not assessed to the land revenue.
3. The learned counsel for the petitioner sought leave on the ground that the learned High Court has set aside the concurrent judgments and decrees on .Grounds which were not taken in the memo. Of appeal (R.S.A. No,11 of 1970); that the suit was competently filed; that the petitioner- plaintiff was owner in the estate and she was duly represented by her attorney in Court who clearly stated that she had not only signed the plaint but was also owner in the estate.
4. During the course of arguments, we specifically asked the learned counsel for the petitioner as to whether the attorney who filed the suit and appeared in Court on behalf of the petitioner-plaintiff had the power to do so in terms of the general power of attorney which was placed on record before the trial Court to which he frankly conceded firstly that the general attorney did not stipulate any specific authority D for the attorney to file the civil suit and further that the general attorney was executed as far back as 18-2-1967, whereas the suit-land was purchased by the respondents- defendants on 24-8-1967. Obviously, the said attorney had no authority to file the pre-emption suit with regard to the suit-land. Petitioner's learned counsel has not been able to rebut the finding with regard to the nature of the land i.e, "the land of the plaintiff is and not cultivated since long and not assessed to land revenue hence cannot be termed as agricultural land, therefore, it can be concluded that the plaintiff does not possess superior right of preemption against the defendants on the basis of the land owned either as sharer in Khata or owner in estate. It has been laid down in 1997 CLC 127 at page 130 that mere ownership of land in revenue estate would not be of much assistance because to be an owner of estate must own land in revenue estate which was also assessed to land revenue. Reference can be made to Kint Ram v. Harbat Singh AIR 1940 Lah. 344, 7 Indian Cases 213; PLD 1989 SC 373(2) and PLD 1986 Lah.
242. (page 8 of the impugned judgment). In a pre-emption suit where a specific challenge was thrown to the nature of the land owned by the pre-emptor and in view of the objection raised in the written statement that the plaint had not been properly filed it was necessary for the plaintiff to appear in support of the averments made in the plaint. The absence of the plaintiff in the circumstances referred to above weakens the case of the preemptor. This is in line with the law laid down by this Court in Muhammad Naeem and others v. Ghulam Muhammad and others 1994 SCM R 559; Muhammad Hussain and others v. Muhammad Khan 1989 SCM R 1026 and Gul Taj Begum v. Lal Hussain Iqbal Hussain PLD 1980 SC (AJ&K) 60.
5. So far as the arguments of petitioner's learned counsel that the High Court has set aside the concurrent judgments and decrees on grounds which were not specifically taken in the memo. Of appeal (R.S.A. No,131 of 1970) is concerned, suffice it to say, admittedly petitioner did not object to the afore-referred grounds when those were agitated before the High Court during arguments nor anything to that effect has been specifically stated by the petitioner in the memo. Of the instant petition.
6. For what has been discussed above, the impugned judgment is unexceptionable and does not call for interference. No question of law of public importance has been raised either. The petition having no merit is accordingly dismissed and leave is refused.