CH. MUHAMMAD MASOOD JAHANGIR, J. In short, the background of the instant case was that Lal Khan, respondent No.2/vendee struck sale qua suit area (fully detailed in para 3 of the instant appeal) with Ghaus Muhammad through sale deed dated 13.04.1972 (Ex:D4). It was pirated by Muhammad Sadiq, respondent No.1 vide suit for possession through pre-emption, whereas prior to institution of said suit Mst. Khurshid Begum (ascendant of the appellants) allegedly purchased suit area from Lal Khan through Mutation No.1744 dated 02.12.1972, thus she was also impleaded as defendant No.2 in the amended plaint filed by Muhammad Sadiq, pre-emptor. The latter claimed his superior right of pre-emption being collateral, sharer in the estate and co-owner in the disputed khata of suit area. The vendee/Lal Khan contested the suit asserting that he had already sold out the pre-empted land to Mst. Khurshid Begum and its possession also handed over to her after receiving sale price as well as making entry in Register of mutations, besides superior right of pre-emption pleaded by Muhammad Sadiq was denied. Mst. Khurshid Begum/defendant No.2 (subsequent vendee) resisted the suit as well while maintaining that she was bona fide purchaser of suit land and that she being collateral, co-owner in the joint khata as well as sharer in the concerned estate had better right of pre-emption.
The learned Civil Court facing with hot contest materialized as many as ten issues and then to discharge the onus probandi placed thereunder, the respective parties adduced evidence in pros and cons per their choice. The suit was ultimately decreed vide judgment dated 03.05.1975. The first and subsequent vendees vis-a-vis Lal Khan and Mst. Khurshid Begum being aggrieved preferred two independent appeals before the District Court and though that of former dismissed, yet other filed on behalf of predecessor-in-interest of present appellants accepted by learned Appellate Court through judgment dated 18.02.1978 and thereby suit for pre-emption of respondent No.1 was dismissed. The latter in earlier cycle of litigation approached this Court by preferring RSA No.535/1978, which was allowed on 10.06.1998. This caused present appellants to file Civil Petition No.9308/1998 before hon'ble Supreme Court, which was disposed of on 28.06.1999 requiring the formers to approach this Court through review application. Although the said remedy was availed, but failed when review petition was dismissed by this Court on 11.05.2006. The appellants another time approached the apex Court via C.P.L.A. No.995-L/ 2006, which succeeded and while setting aside both orders dated 10.06.1998 and 11.05.2006 passed in R.S.A. No.535/1978 and R.A. No.46/2000 respectively, former lis was remanded to this Court for its fresh decision per certain directions detailed thereunder. Anyhow, in post remand proceedings on 18.12.2014, this Court while allowing R.S.A. No.535/1978 remanded the matter to learned Appellate Court requiring it to decide the appeals filed on behalf of the vendee and subsequent vendee, per following directions:- "Consequently, this appeal is allowed, the impugned judgment and decree dated 18.12.1978 passed by the learned lower Appellate Court accepting the allowing of application under Order XLI, Rule 27, C.P.C. is set aside and the main appeal filed by the appellant will be dee, d to be pending before the learned lower Appellate Court, who will provide two fair opportunities to the present appellant (respondent No.1 in the main appeal) for adducing his evidence in rebuttal to the additional evidence led by the present respondents (appellants in the said appeal) and decide the appeal afresh on merits within a period of three months positively.
The learned Additional District Judge after collecting desired evidence of the concerned parties, this time vide judgment dated 02.04.2015 maintained original decree dated 03.05.1975 passed in favour of pre-emptor/respondent No.1. The first vendee Lal Khan kept mum, whereas appellants being successors-in-interest of subsequent vendee preferred instant second appeal to call in question the concurrent decrees of learned two Courts below.
2. Ch. Muhammad Zubair Rafique Warraich, ASC worthy counsel for appellants argued that pedigree tables tendered on behalf of contesting parties were not appreciated per their spirit, rather while misconstruing those learned Courts below rendered erroneous findings on issues Nos. 1 and 2, which being tainted with misreading and non-reading of evidence are not liable to be sustained. It was next contended that Mst. Khurshid Begum (ascendant of appellants) was daughter of Sardar, who was son of Mehra, whereas the latter was son of Mubarak and similarly, Muhammad Sadiq (the pre-emptor) was son of Muhammad, who was son of Mehra and latter was also son of Mubarak, therefore, both the subsequent vendee and pre-emptor/respondent No.1 were grandchildren of Mehra son of Muabarak, who was common predecessor of Ghaus Muhammad, original vendor as well, therefore, Mst. Khurshid Begum (appellants predecessor) was at equal footing with the pre-emptor vis-a-vis superior right, thus she being purchaser prior to institution of suit could validly defeat the right of pre-emptor to claim transfer of land. It was further emphasized by learned counsel for the appellants that Courts below committed patent illegality in excluding Mst. Khurshid Begum being female from the category of collaterals through application of Shariat Law of inheritance. It is also argued on behalf of appellants that the pre-emptor had no better right against Mst. Khurshid Begum (second vendee), thus suit was liable to be dismissed, but both the learned Courts below without appreciating the available material passed the impugned judgments. In the far end of his arguments, it was emphasized that issue No.8 pertaining to limitation had also been decided in an illegal manner, because possession of land was handed over to Lal Khan (first vendee) on 01.02.1972, which fact was fully known to pre-emptor, thus suit instituted by him on 13.04.1973 was time barred and liable to be dismissed on this score alone, and that impugned judgments being tainted with jurisdictional defect, besides suffering from material irregularity definitely hit by exceptions provided under section 100 of the Code, 1908, thus not sustainable.
Ch. Muhammad Akbar Warraich and Ihsan Ullah, Advocates appearing on behalf of successor-in- interest of Lal Khan (first vendee) adopted arguments advanced by Ch. Muhammad Zubair Rafique Warraich, worthy counsel for appellants.
3. In contra, Mr. Muhammad Shahid Tasawar Rao, worthy counsel for pre-emptor/respondent No.1 argued that basic sale deed on behalf of Ghaus Muhammad in favour of Lal Khan was executed on 13.04.1972, thus per law prevailing at that time institution of suit on 11.04.1973 was well within provided limitation of one year. He further added that per pedigree tables (Ex:P1, Ex:P2, Ex:P8 and Ex:DA) fully corroborated through statement of DW1 and DW4 as well, the superior right of pre- emption was established, that Lal Khan first vendee, even did not deny superior right of pre- emptor, rather in his cross-examination conceded that Mehr Dad was paternal grandfather of Muhammad Sadiq, thus stance of pre-emptor being collateral of Ghaus Muhammad was no more issue. It is also emphasized on behalf of Mr. Rao that being male collateral, the pre-emptor fell within the list of residuary while Mst. Khurshid Begum, (ascendant of appellants) was female descendant, who did not come in said circle, therefore the Courts below were perfect in holding that pre-emptor had better right of pre-emption vis-a-vis vendee and subsequent vendee.
4. Arguments heard. Record perused.
5. As noted earlier though ten issues per pleadings of the contesting parties settled, but out of those, only issues Nos.1, 2 and 8 being the core one for brevity sake are reproduced hereunder:-
1. Whether plaintiffs have superior right of pre-emption qua the vendee/defendant? OPP
2. If issue No.1 is proved, whether plaintiff has superior right of pre-emption qua the defendant No.2, the present vendee? OPP.
8. Whether this suit is time barred by limitation? OPD.
It was Lal Khan (first vendee), who per preliminary objection No.2 of his written statement asserted that he had purchased the land vide sale receipt dated 01.02.1972 by making advance amount, when allegedly possession was also delivered to him, whereas remaining sale price was paid at the time of attestation of sale deed, thus institution of pre-emption suit beyond one year of the basic sale struck on 01.02.1972 was time barred, therefore issue No.8 was framed, otherwise from date of registration of sale deed, the suit was filed within provided period on 11.04.1973. The onus probandi of issue No.8 was upon Lal Khan, vendee to prove that the sale indeed was basically effected on 01.02.1972. On his part there was his solitary statement, who being DW4 though tendered the receipt dated 01.02.1972 (Exh.D3), which did not find mention that possession was also delivered thereunder. It was a hard fact that neither Ghaus Muhammad (original vendor) nor anyone out of two marginal witnesses of Exh. D3 despite availability were produced. Moreover, sale deed (Exh.D4) was found mute as well qua any prior deal, whereas none of the copies of khasra girdawaries got exhibited on behalf of defendants to expose that possession under purported sale dated 01.021972 ever delivered to Lal Khan, vendee, therefore mere exhibition of receipt (Exh. D3) was of no help to the latter to hold that suit was barred by time. In addition thereto, the concurrent findings to this effect had not been challenged by Lal Khan, thus he, otherwise, admitted the same returned against issue under discussion.
6. Admittedly, viz superior right, the claim of pre-emptor was not seriously disputed by Lal Khan, (first vendee). He even did not controvert the said right by bringing on record any reliable document to negate the pedigree tables produced by the pre-emptor. Moreover, Lal Khan in his cross-examination admitted the lineal tie of the pre-emptor, which proved him to be collateral of the original vendor. There left dispute of superior right among pre-emptor and the appellants.
Having consulted oral evidence as well as pedigree tables tendered by the parties, it was found that Karam bad and Mubarak being sons of Hamid were two real brothers. The original vendor Ghaus Muhammad was paternal grandson of Karam Dad, the brother of Mubarak, whereas Maher Dad alias Mehra son of Mubarak had two sons viz Sardara and Muhammad. Mst. Khurshid Begum (the predecessor-in-interest of the appellants) was daughter of Sardara, whereas Muhammad Sadiq, pre-emptor was son of Muhammad, thus Hamid stood common ancestor of Ghaus Muhammad, (the original vendor), Muhammad Sadiq (pre-emptor) and Mst. Khurshid Begum (second vendee). In such situation, the pre-emptor being male descendant fell within the category of residuary, whereas Mst. Khurshid Begum as female successor-in-interest went out of said list.
Therefore Mst. Khurshid Begum became remote to the vendor as compared to the pre-emptor. The latter being nearer per settled principle obviously had to exclude the remote, thus superior right of pre-emption was perfectly adjudicated, upon in favour of pre-emptor.
7. Although Mr. Warraich, worthy counsel for the appellants while consuming maximum time argued the case to the best of his ability, but failed to persuade that either the impugned concurrent decrees are tainted with misreading/non-reading of evidence or suffering from jurisdictional defect, rather are found to be perfect narrative of the available material. The scope of interference in second appeal is narrower and restricted, which can only be invoked where some gross illegality appears to have been committed by the Courts below or evidence was not perused in its true perspective, which at all is not the case here, thus no case to attract any of exceptions provided under section 100 of the Code, 1908 is made out, therefore, appeal in hand being meritless is dismissed. No order as to costs.