' On 10th September, 1978, the respondent filed a suit for the possession of land measuring 14 kanals, 14 marlas, situate in Mauza Nawan Baig, Tehsil Jampur. District Dera Ghazi Khan, by way of the exercise of right of pre-emption. One Abdul Ghafoor the original owner had sold this land to the appellant by virtue of a sale deed dated 28th August, 1977 for a sum of Rs, 3,700 as the consideration. The pre-emptor claimed that the market price of the land was Rs, 2,000, and that the amount of Rs, 3,700 had been shown to be fictitious. The respondent based his superior right of pre-emption on his being co-sharer and the owner in the estate. The suit was contested by the appellant and the A superior right of pre-emption of the respondent was denied on the ground that the appellant was a collateral of the vendor and therefore had a superior right of pre-emption.
It was further urged that the price of Rs, 3,700 was bona fide fixed and paid in good faith. The !Earned trial Court vide its judgment dated 20th March, 1979 decreed the suit in favour of the respondent on the payment of Rs, 2.000 as the price. The contention of the appellant that he was collateral was held to be not proved. The appellant filed an appeal against the decree of the learned Civil Judge, Jampur, but the same was dismissed by the learned District Judge. Dera Ghazi Khan by his judgment dated 21st July, 1979. The present appeal is filed against the said judgment.
2. The only point canvassed by the learned counsel for the appellant is that the evidence produced by the appellant to show that he was collateral of the vendor had not been read in the light of the observations made in the case reported as Haji Ilahi Bakhsh and others v. Mst. Bibi and others (1).
The precise contention is that it was not necessary to make statements by the witnesses on the basis of any conduct as provided under section 50 of the Evidence Act to prove the relationship and their mere knowledge, was sufficient. It has been argued that the earlier judgment of this Court reported as Ghulam Muhammad and another v. Allah Yar and others (2) was not fully approved in Haji Ilahi Bakhsh and others v. Mst. Nawab Bibi and others but had been affirmed by a judgment of the Supreme Court reported as Shah Nawaz and others v. Nawab Khan (3) In the case Ilahi Bakhsh v. Mst. Nawab Bibi, cited above, Mr Justice A. S. Faruqui while generally accepting the principle in the requirement of the evidence under secrion 50 of the Evidence Act as enunciated in Ghulam Mohammad v. Allah Yar, cited above, it was observed that in many cases such a requirement would be necessary but it could not be laid down as a general proposition. In this connection the relevant observations are quoted below :- "With regard to most of the observations made by my learned brother with reference to section 50 1 am in respectful agreement but the point where I have found difficulty in accepting his view, and 1 say so with great respect, is with regard to the general proposition that the evidence of relationship would be inadmissible unless foundation for the admission of such evidence is laid by the party who seeks its admission. That in many cases such a requirement would be necessary is true, but this cannot be laid down as a general proposition. For instance, if a brother of the deceased was to depose that A was the son of the deceased or was his wife, I do not think it would be necessary to ask questions of such a witness in the first instance regarding the means of his special knowledge.
Such a means would be presumed in such a case. In my opinion, therefore, when a witness is shown either to be a relation or a friend of the family and he deposes to a fact of relationship there would be a presumption that he had the special knowledge of such relationship. It would not in such a case be necessary to preface his evidence of relationship with questions which must first lay down the foundation based on conduct with regard to such evidence."
' The requirement of section 50 of the Evidence Act as laid down in the case reported as Ghulam Muhammad v. Allah Yar as approved by the Supreme Court is that when the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, {{FOOT NOTE}}
(1) PLD 1966 Lab. 664 (2) PLD 1965 Lah. 482
(3) PLD 1976 SC 767 {{FOOT NOTE}} ' as to the existence of such relationship, of any person who, as a member of family or otherwise, has special means of knowledge on the subject, is a relevant fact. It is the opinion, expressed by conduct, of any person who has special means of knowledge about the relationship, which has been declared to be relevant.
3. I have examined the statements of Noor Mohammad D. W. 1 and Nazir Ahmad D. W. 2, and find that the witnesses produced by the appellant had only narrated the pedigree-table which evidence according to law was not in conformity with the provisions of section 50 of the Evidence Act. Nazir Ahmad D. W. 2 has clearly admitted that this pedigree-table had been disclosed to him by his father. Both the Courts below have rightly rejected this evidence. Moreover, as regards the question whether the respondent had the superior right of pre-emption a pure question of fact based on the proper appreciation of evidence and cannot be upset in this second appeal. No ground is made out for interference. This appeal is therefore dismissed with costs.