1. SHAFIUR RAHMAN, J.-- This petition for leave to appeal is by the unsuccessful defendants in a civil suit which was decreed by the trial Court and the first and the second appeals of the petitioners challenging that decision, failed.
2. Ahsanullah had sold on 23rd February, 1958 for Rs.10,000 land measuring 428 Kanals and 1 Marla in the revenue estate of Hafiz Noor Hassan, Tehsil and District Dera Ghazi Khan to Mat. Kundan wife of his son Atta Muhammad and to to of their children, the petitioners. Sibghatullah one of the sons of Ahsanullah filed a civil suit challenging the sale on various grounds and in the alternative also pre- empting the sale. This suit was contested on numerous grounds but ultimately the plaintiff abandoned the first relief and confined his claim to his superior right of pre-emption against the defendants. The evidence of the petitioners was closed under Order XVII, rule 3, C.P.C. And the suit was decreed. This decree was maintained in appeal and second appeal.
3. The learned counsel for the petitioners has challenged the decision on the ground that the closure of the evidence of the petitioners in the suit was arbitrary and unjustified, that no finding had been recorded by the trial Court on Issue No.1-A about the suit being collusive for the benefit of Abdul Qayyum who was financing it and that the petitioners to had an equal right of preemption.
4. We have heard the learned counsel for the petitioners and find that the trial Court has made the following observations with regard to the conduct of the petitioners in not producing evidence:- "At all occasions and at all stages, the delay is referable to the conduct of the contesting defendants. No more delay can be tolerated. Fair chance more than required has already been provided to the defendants."
5. This conclusion which has not been displaced by the contentions of the learned counsel for the petitioners justified the closure of their evidence and should not afford them a legal grievance.
6. As regards, the collusive nature of the suit its financing and benefit thereof, we find that the omission, if any, existing in the judgment of the trial Court has been amply remedied. The High Court itself examined this plea and recorded the following finding:- "The respondent appearing as his own witness stated in clear terms that he had brought the suit for his own benefit and with his own expenses and not for the benefit of Abdul Qayyum or any other person. Abdul Qayyum for whose benefit and with whose expenses the suit is alleged to have been brought was examined by the respondents and in cross-examination he denied the suggestion that he had got the suit brought by the respondent for his own benefit. The other thing is that the objection that issue No. 1-A was not decided was neither taken up in the first appeal nor in the grounds of 'the second appeal and only during the arguments this point has been raised before me by the learned counsel for the appellants."
7. On facts none of the Courts have held that the petitioners had an equal or a superior right of pre- emption to match against that of the plaintiff-respondents. There is no legal infirmity in recording this finding of fact. The petition, therefore, has no merit and leave to appeal is refused.