' Raja Muhammad Aslam Khan, the learned Advocate who represents the petitioner, despite service, is absent. Even otherwise the record does not speak good of him. This petition for leave to appeal was presented on 15-12-1982 without 'list of rulings. Despite repeated notices by the Deputy Registrar the learned Advocate failed to file the same. All this shows that the learned counsel has unduly delayed in bringing this petition to bearing. Being a Senior Advocate he is expected to follow the norms of law and rules; failure whereof can hardly be appreciated. I hope in future he would improve and be vigilant in prosecuting his cases in accordance with law and rules.
2. Despite absence of the learned counsel for the petitioner I have decided to dispose of this petition on merits. The petition seeks to discredit the judgment passed by a learned Single Judge of the High Court on 17-10-1982 whereby while discharging the judgment of the learned District Judge, Kotli, passed on 4-2-1982, the order of the learned Sub-Judge, Kotli, dated 13-9-1981, in dismissing the pre-emption suit of the petitioner, was restored.
3. I have looked into the relevant judgments passed by the Courts with the help of Raja Muhammad Siddique, the learned counsel for the respondents. Nasrin Begum, petitioner, sought to pre-empt the sale-deed executed by her husband, Muhammad Sharif, in favour of Dil Muhammad and Fazal Dad respondents. She claimed the right of prior purchase on the basis of her being the wife of the vendor Muhammad Sharif. Her right was denied by the respondent-vendees. The pleadings gave rise to the controversial issue, No, 1, which is to the effect as to whether the petitioner is clothed with the right of prior purchase of the suit land as compared with the vendees.
4. This issue was decided against the petitioner by the learned Sub-Judge vide order dated 13-9- 1981. On appeal the learned District Judge discharged the finding of the Sub-Judge resulting in a decree of pre-emption in her favour. However, in second appeal moved by the vendees, as said elsewhere, while accepting the appeal a learned Single Judge felt advised to restore the judgment of the learned Sub-Judge.
5. The petitioner, it does not require any deep thought, was required to prove that she was the wife of Muhammad Sharif vendor at the time the suit land was transferred. If she fails to prove so she is to be non-suited.
6. When the marriage of Nasrin Begum, petitioner, was performed is a question of fact and_ the learned Sub-Judge and the High Court, on well-considered grounds, found that the marriage was contracted after the sale-deed which was registered on 16-7-1979.
7. A finding on a question of fact is open to attack as erroneous in law only if it is not supported by any evidence or if it is unreasonable and perverse; but where there is evidence to consider the decree of the High Court the decision is final even though this Court might not, on the material, have come to the same conclusion if it had the power to substitute its own judgment. Here in this case three witnesses of the petitioner, namely, Muhammad Bashir, Lal and Muhammad Sharif, say that Nasrin Begum was married to Muhammad Sharif, after the execution of the sale-deed. The other witnesses, namely, Ghulam Rasool, Hanif Khan, Baqa Muhammad and Muhammad Iqbal, examined by the petitioner,, no doubt, say that the marriage of Nasrin Begum was performed before the sale-deed but the statements of these witnesses do not ring true because they remember not the names of Nikah Khawan and the witnesses of Nikah which they were expected to k now if they would have participated in the marriage function. Their statements thus stand excluded' from consideration on substantial grounds.
8. It is clear to me that in the circumstances when the petitioner claims right of prior purchase, the burden is on her to prove the fact or facts providing her such a right; and it would be illegal to saddle the respondents (vendees) with the responsibility to prove in negative that no such right resided in the petitioner.
For the above-stated reasons no good case for acceptance of this petition is made out The petition, therefore, stands dismissed for non-prosecution as well as on merits.