' MUHAMMAD QAIM JAN KHAN, J.--- This appeal under Article 185(2)(d) of the Constitution of Islamic Republic of Pakistan, 1973 calls in question the validity of the judgment and decree, dated 13-4- 2004 of the Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Civil Revision No,191 of 2002 vide which the decreed property has been ordered to be divided equally between the contesting parties.
2. Short facts of the case are that Asif Javed and Atif Javed plaintiffs/respondents, through their natural guardian/father Ghulam Muhammad, instituted a suit against Muhammad Tariq and 4 others, defendants/appellants for a decree of possession by pre-emption and land measuring 20 Kanals, 17 Marlas situated in village Tamman, Tehsil Talagang District Chakwal transferred vide Mutation No,2169 attested on 25-9-1995. It was further alleged in the plaint that as the plaintiffs/ respondents were minors and Ghulam Muhammad being their real father, had got no adverse interest against the minors in filing the suit for their benefit; that Mst. Sultan Begum etc. Sold the suit property to the defendants/appellants vide Mutation No,2169 attested on 25-9-1995 at a price of Rs,30,000 but in order to defeat the plaintiffs/respondents preemptive right an amount of Rs,50,000 has been shown in the Mutation; that the price of the suit-land was not more than Rs,50,000; that on 8-10-1995 at 8-00 a.m., one Muhammad Hayat informed Ghulam Muhammad, plaintiffs/respondents' father regarding the sale of the suit property, upon which Ghulam Muhammad there and then in the same sitting and in presence of the witnesses announced his intention of preempting the suit property; that after making Talb-i-Muwathibat on the same day i,e, 8-10-1995, Ghulam Muhammad sent notice of Talb-iIshhad to the defendants/appellants in the presence of the witnesses including Muhammad Hayat, Shahid Ahmad and Aziz Hand; that the plaintiffs/respondents have got superior right of pre-emption than the defendants/vendees/appellants on the ground of being Shafi Khaleet and Shafi Jaar; that the plaintiffs/respondents need the suit-land for the protection of their own land and that the defendants/ appellants were strangers; that several times the defendants/ appellants were asked to accept the price and hand over the suit property to the plaintiffs/respondents but as they refused to do so hence the present suit.
3. The defendants/appellants contested the suit by filing two sets of their written statements i,e, one by defendants/appellants Nos.1 and 2 and the other by defendants/appellants Nos.3 to 5. On the divergent pleas of the respective parties the trial Court framed almost seven issues apart from relief. Evidence, pro and contra, was recorded and after hearing the respective counsel for the parties and going through the, record the trial Judge by his judgment and decree, dated 16-9-2000 dismissed the suit of the plaintiffs/respondents leaving the parties to bear their own costs.
4. Dissatisfied with the said judgment plaintiffs/respondents filed appeal in the Court of Additional District Judge, Talagang and the said Court after hearing the respective counsel for the parties and going through the record while accepting the appeal set aside the judgment and decree of the trial Court and granted a decree in favour of the plaintiffs/respondents to the extent of 2/7 share out of the suit-land vide judgment, dated 27-2-2002 and they were directed to deposit Rs,14,286 i,e, 2/7 share of the total pre-emption money (Rs,50,000) within one month failing which their suit would stand dismissed.
5. Aggrieved from the judgment and decree of the Appellate Court the defendants/appellants filed Civil Revision No,191-D of 2002 in the Lahore High Court, Rawalpindi Bench, Rawalpindi and a learned Judge of the said Court after hearing the respective counsel for the parties and going through the record, set aside the judgment and decree of the Appellate Court and granted a decree in favour of the appellants and respondents in equal shares i,e, 1/2 each vide impugned judgment, dated 13-4-2004 and directed the plaintiffs/respondents to deposit Rs,25,000 which is 1/12 of the pre-emption money of Rs,50,000 minus any amount already deposited by them in the shape of Zar-e-Soim within two months. Hence this appeal.
6. Learned counsel for the defendants/appellants assailed the impugned judgment on two points i,e, (i) Talbs and (ii) the per capita share. In support of his contention he relied upon Ladhi Bibi v.
Masaddar Ali AIR 1949 Assam 81, Amir Hassan v. Rahim Bakhsh and others ILR 19 All 466, Feroze Khan v. Ahmad Yar 1992 MLD 1570, Sar Anjam v. Abdul Raziq 1999 SCMR 2167, Muhammad Hayat v. Faiz Ali 2002 MLD 938, Sarfraz Khan v. Naimatullah Khan 2002 SCMR 751, Muhammad Bashir v. Abbas Ali Shah 2007 SCMR 1105 and Faiz Muhammad v. Muhammad Azam PLD 2008 Lah.
7.
7. Learned counsel for the plaintiffs/respondents, however, supported the judgment and placed reliance on Kala Khan v. Ayyub Khan 1993 SCMR 543, Abdul Malik v. Muhammad Latif 1999 SCMR 717, Abdul Qayum v. Mushk-e-Alam 2001 SCMR 798, Khalid Hussain v. Muhammad Baqir PLD 2002 Lah.
280, Raooh-ul-Qadoos v. Muhammad Rafique 2002 CLC 379, Muhammad Nawaz v. Ahmad Khan and another 2005 YLR 197, Hayat Muhammad v. Mazhar Hussain 2006 SCMR 1410 and section 26 of the West Pakistan General Clauses Act, 1956.
8. We have heard the learned counsel for the parties at length and have gone through the record as well as the respective rulings produced by the two counsel. Only two points have been agitated by the learned counsel for the appellants viz. With regard to Talbs and the division of the decreed property. As far as the first point is concerned, the Appellate Court as well as the Revisional Court have held that the plaintiffs/ respondents have performed the two Talbs in accordance with law.
We have scrutinized the whole evidence and are of the view that the judgments of the two Courts below i,e, the Appellate Court and the Revisional Court are plainly correct on the point of Talbs as minor A clerical omission in the statement of a witness whose statement is recorded after sufficient time, cannot mar the case of the plaintiff. Moreover, the law does not favour to throw away the pre- emptor just on technicalities. Anyhow, the pre-emptors/respondents have proved the two Talbs with cogent oral and documentary evidence and we are not inclined to interfere with the concurrent findings of the two Courts below.
9. Now coming to the next point whether the decreed property should be divided on per capita basis or on equal basis. The case-law favours that the property be divided in equal shares i,e, 1/2 each. Anyhow, in order to further strengthen the same, we would scrutinize the very words of section 20 of the Punjab Pre-emption Act, 1991 which is reproduced hereunder:-- "20 Where the pre-emptor and vendee equally entitled.---- Where the pre-emptor and the vendee fall within the same class of preemptors and have, equal right of pre-emption, the property shall be shared by them equally."
' A bare reading of the text of above section clearly shows that the Legislature has divided the pre- emptor and the vendee into two distinct classes i,e, the pre-emptor and the vendee, and if the pre- emptor and the vendee have equal right of pre-emption the property would be shared by them equally notwithstanding the number of pre-emptors or the vendees. If we follow the other version of per capita basis then the whole sense of the section would altogether be damaged. Uptill this time, all the rulings of this Court are in favour of the division of the property in equal shares i,e, 50/50 or 1/2 each because the contesting parties are two different classes, so keeping in view this principle the impugned judgment of the High Court is plainly correct and needs no interference.
Hence the appeal is dismissed. No order as to costs.