' Ejaz Afzal Khan, J.--This appeal with the leave of the Court has arisen out of the judgment dated 12.03.2003 of the Lahore High Court, Lahore whereby the learned Judge in its chambers dismissed the RSA filed by the appellants and maintained the judgment and decree of the fora below.
2. Points raised and noted at the time of grant oi leave read as under: "Inter alia contends that petitioners/defendants aye admittedly successor-in-interest of Ghulam Muhammad the vended of sale-deed dated 27th April, 1935; that the suit lane is the same which was subject matter of the afore-referred sale-deed; that it was a small piece of land i.e. Of 2-Kanal & 2 Marlas which admittedly was purchased for residential purposes us is evident from the sale- deed; that the suit was hopelessly time barred and that the Courts below have failed to advert to these two important points which knocks out the respondent /plaintiffs claim for pre-emption."
3. Learned ASC appearing on behalf of the appellants contended that no pre-emptor in a suit for enforcement of night of preemption on the ground being collateral could succeed without producing pedigree-table which is the only trustworthy elidence to establish his relationship with the vendor, therefore, the suit of the respondents in the absence of such evidence is liable to be dismissed. The learned ASC next contended that where ample evidence has come on the record to show that appellants not only took possession of the suit land under the sale but constructed a house thereon fifteen years before the institution of the suit, it being hopelessly time barred was liable to be dismissed on this score as well.
4. Learned ASC appearing on behalf of the respondents contended that where the witnesses examined by the respondents proved that the respondents was collateral of the vendor, in the absence of any evidence to the contrary, their statement cannot be brushed aside. Failure to produce the pedigree-table, the learned ASC maintained, cannot give rise to an adverse inference when one of the witnesses of the appellants also admitted the respondents to be collateral of the vendor.
5. We have gone through the entire record carefully and considered the submissions of the learned ASCs for the parties.
6. A look at the plaint and evidence of the respondent recorded in the Court shows that he instituted a suit for enforcement of a right of pre-emption on the ground of being collateral of the vendor. But strangely enough he neither produced pedigree-table nor any person from the same lineage to establish such relationship. Witnesses examined by the respondent stated that he is collateral of the vendor but that would not carry any weight as they are neither related to the respondent nor are supposed to be acquainted with the lineage of the respondent. One of the witnesses examined by the appellant admitted that the respondent is one of the collateral of the vendor but that would not help the respondent as he too is neither related to the respondent nor is supposed to be acquainted with his lineal relationship with vendor. Where the best possible evidence in either of the forms mentioned above was withheld, the inference that the evidence which could be and is not produced would, if produced be unfavorable to the person withholding it, has to be drawn against the respondent. It was in view of these deficiencies in evidence that the High Court in the earlier round of litigation remanded the case by framing the issues as follows:-- "(i) Whether the sale of occupancy rights sought to be preempted was in continuation of the earlier sale of occupancy rights conveyed by Mutation No. 242, marked Ext.P.2 sanctioned on 23.9.1936, or, that the two transactions had no nexus with each other and the former was an independent pre- emptible transaction of sale?
(ii) Since, when were the present vends or their predecessor-in-interest in possession of the land in dispute, and, if so, the time of the commencement of possession, its nature and capacity?
(iii) Whether, the pre-emptor/pre-emptors were possessed of a superior right of pre-emption on the basis of relationship to the vendors and co-ownership in the occupancy rights sold?
7. Worse went to worst when the respondent despite having another chance to produce the best possible evidence withheld it. When asked, why pedigree-table was not produced to establish lineal relationship of the respondent with the vendor, the reply of the learned ASC for the respondent was that no pedigree-table is prepared in respect of occupancy. This argument, so to say, is incorrect on the face of it because occupancy has been heritable ever since the enforcement of the Punjab Tenancy Act and like other heritable rights in the property its succession has also been regulated by pedigree-table. Therefore absence or non-preparation of pedigree- table is just a lame rather legless excuse. Even otherwise, the suit of the respondent is hopelessly time barred when it has been established on the record that the appellant not only took possession of the property in dispute under sale but constructed a house thereon almost fifteen years before the institution of the suit. The judgments of the fora below as well as the High Court being based on non-reading of evidence cannot be maintained.
8. For the reasons discussed above, we allow this appeal, set aside the impugned judgment of the fora below as well as the High Court and dismiss the suit of the respondent with no order as to cost.