1. MUHAMMAD AFZAL ZULLAH, J.--A plaintiff has through this petition sought leave from the judgment dated 20th December 1978, passed in revisional jurisdiction by the Peshawar High Court, whereby the dismissal of his suit for pre-emption regarding a house was affirmed.
2. Mohsin Shah the vendor sold the suit property to Sikandar Khan respondent in September 1971. The petitioner served a notice on Sikandar on 9-5-1972 whereby he asserted his right to pre-empt the sale. Sikandar did not accept the claim. The petitioner filed the suit for pre-emption on 18-5-1972 on the grounds that he owned house/s contiguous to the suit house and also that he was participating in amenities which were common to both the houses. On the next day Muhammad Hussain respon--dent, father of Sikandar filed another suit to pre-empt the same sale on the ground that he was co-sharer in the suit property and that although the sale was of only half of the house, it was fraudulently represented to be of the whole house. A compromise took place in the second suit as a result of which a decree for possession through pre-emption was passed in favour of Muhammad Hussain. On coming to know of this development the petitiottor amended his plaint and impleaded Muhammad Hussain as a defendant on 27-6-1972. After contest mainly between the petitioner on the one side and Sikandar vendee and his father on the other, the learned trial Court dismissed the petitioner's suit on the finding that Muhammad Hussain was in fact the owner of half of the house when the sale by Mohsin Shah in favour of Sikandar took place in 1971. Muhammad Hussain's plea was that the sale in favour of Sikandar which was subject--- matter of suit for pre-emption was of half of the house. On petitioner's appeal, which was dismissed by a learned District Judge, the findings of fact recorded by the learned trial Court were affirmed. The matter was then agitated by the petitioner before the High Court through a revision petition, which was dismissed by a learned Single Judge further arming the concurrent findings of fact reached by the learned Courts below. There--fore, this petition for leave to appeal.
3. Learned counsel appearing for the petitioner has raised the same factual controversies which have been concluded by the concurrent findings of fact. He has criticised the approach of the learned Courts in deciding the question with regard to the claim of Muhammad Hussain that he was co- owner with Mohsin Shah in the house to the extent of I/2 share and that the sale in question was only of the remaining house. Learned counsel has in this behalf made a reference to certain pieces of evidence including the statement of the scribe who prepared the documents in connection with the sale in dispute, the statement made by Mohsin Shah in Court as petitioners witness, and the document relating to the claim of Muhammad Hussain that although he had in 1930 sold the 1/2 share to Mohsin Shah, the same was repurchased in pursuance to an agreement with Mohsin Shah. After hearing him on this aspect of the matter, we do not find any justification for interference in the findings of fact that Muhammad Hussain was the co-owner in the house to the extent of 1/2 share and further that the sale by Mohsin Shah was in reality of the half of the house and not of - the whole house.
4. Learned counsel also contended that the suit of Muhammad Hussain should have been treated, in law, as for partial pre-emption because, as argued by him, the sale being or the full house, he sued for pre-emption only for half of the house. He also contended that it was not permissible for Muhammad Hussain to set up a title in the suit property and also to claim pre-emption regarding the same property. He placed reliance on Ghulam Muhammad died 3 others v. Khushi Muhammad and another PLD 1970 SC 299 and Malik Hussain and others v. Lala Ram Chand and others PLD 1970 SC 299. The main question in the case of Malik Hussain in connection with which the reference was made to the rule of partial pre-emption related to the payment of the price for the whole of the bargain. In this case there is no such dispute. Muhammad Hussain in his suit wanted to take whole of the property sold by Mohsin Shah to Sikandar. It is however, a question of fact decided in his favour that in reality Mohsin Shah had sold half of the house and had fraudulently mentioned the whole of it in the documents of sale, The case of Ghulam Muhammad is also distinguishable. The pre--emptor therein had given up a claim to a part of the property which was the subject-matter of suit because, a third party had claimed right therein. The facts in the present case are totally different. Muhammad Hussain succeeded in establishing that only half of the house was sold by Mohsin Shah to Sikandar and that he had a preferential right of pre--emption because he owned the other half Although lear6td counsel did not discuss another reason for which the petitioner's suit was dismissed by the learned trial Court namely, that he had not been able to establish his right' of pre- emption on the ground of contiguity and/or participation in amenities The findings of fact in that behalf are also unexceptionable. This petition has no force which is accordingly dismissed.