' Three brothers namely, Abdul Jalil, Muhammad Salim and Muhammad Riaz sons of Abdul Khaliq, purchased from Bakhsh son of Allah Din 14 marlas of land (263/4320 shares) out of Khasra No. 655 measuring 11 kanals 18 marlas, situated in Bandi Seeran, Tehsil Haripur, District Abbottabad. The sale was effected by mutation No. 657, attested on 28-11-1979. In the sale mutation Rs.14,000 were entered as sale consideration. Ghulam Sarwar pre-empted the sale on the basis of co-sharership, participation in the immunities and appendages and contiguity. He also disputed the sale consideration.
2. All three vendees contested the suit by filing two separate written statements one by Abdul Jalil and the other jointly by Muhammad Salim and Muhammad Riaz. There were raised many pleas, including the one that the sale was exempt from pre-emption u/s 7(2) of the N.-W.F.P. , Pre- emption Act. On the pleadings of the parties the learned trial Judge framed the following issues:--
(1) Whether plaintiff has got a cause of action ?
(2) Whether the suit transaction is exempt from pre-emption under section 5(c) of the Pre- emption Act?
(3) Whether plaintiff has got superior right of pre-emption?
(4) Whether a sum of Rs.14,000 was fixed in good faith or actually paid?
(5) What is the market value?
(6) Whether plaintiff is estopped to sue?
(7) Relief.
3. On conclusion of the proceedings the learned trial Judge decided issues Nos. 1 and 3 in favour of the preemptor. On issue No. 2 his findihg was that it was proved on the record that the land in suit had been purchased by the vendees-defendants for the construction of residential house and for that reason they were entitled to protection available to them u/s 5(c) of the N.-W.F.P. Pre-emption Act. Issues Nos. 4 and 5 were discussed together and it was found, as was admitted before him by the learned counsel for the preemptor-plaintiff, that the land in suit was worth Rs.14,000 which was the amount said to have been paid as sale price thereof. In view of his finding on issue No. 2, the learned trial Judge, vide the judgment and the decree dated 15-2-1982, dismissed the suit, leaving the parties to bear their own costs.
4. The aggrieved plaintiff went up in appeal to the Court of the learned Additional District Judge, Haripur, where finding of the learned trial Judge on issue No. 2 alone was assailed. The findings on other issues were obviously accepted by the parties, which, therefore, became final between them.
The learned lower appellate Judge, while accepting the contentions raised before him by the learned counsel for the appellant, accepted the appeal, set aside the finding of the learned trial Judge on issue No. 2 and granted to the appellant-plaintiff decree for possession by pre-emption of the suit land on payment of Rs.14,000.
5. The aggrieved defendants have come to this Court in revision and the finding reached by the learned Additional District Judge on issue No. 2 has been assailed herein.
6. As already mentioned, the learned trial Judge accepted as proved the fact that the vendee- defdts, who were residents of this village, had purchased the land in suit for the construction of residential house and could, therefore, seek exemption provided for in clause (c) of section 5 of the N.-W.F.P. Pre-emption Act. With respect to Muhammad Riaz, the learned lower appellate Judge held that since he himself did not appear in the witness-box and since Abdul Khaliq, who appeared as a witness for all the vendeesdefendants, was not holding power of attorney on his behalf, so Muhammad Riaz was not entitled to the exemption available to a vendee u/s 5(c) of the N.-W.F.P.
Pre-emption Act. The learned lower appellate Judge, although admitting the fact that the village in which the land in suit is situate is a 'native village' of the remaining two of the vendees-defdts, came to the conclusion that since they (being out in service) were not residing in that village, they for that reason could not claim exemption as provided for in the Act. The other reasons which prevailed with the learned lower appellate Judge were that no convincing evidence had been led to prove that in the same locality (village) they do not own any other property and that the suit property had been purchased for constructing a house for them. Yet another reason which prevailed with the learned lower appellate Judge was that since a share had been purchased out of un-partitioned Khasra number without express consent or permission of other co-sharers, exemption under section 5(c) of the N.-W.F.P. Pre-emption Act could not, therefore, be claimed.
These two conflicting views of the learned Courts below are before me and it is to be seen which of them is correct in the light of material placed on record. It is further to be seen whether interference in revisional jurisdiction is also called for.
7. Khawaja Abdur Rashid, Advocate, the learned counsel for the petitioners, contended that there was sufficient material on the record to show that the land in suit had been purchased by the petitioners for the construction of residential house and that all the ingredients of section 5(c) of the N.W.F.P. Pre-emption Act stood proved on the record, which the learned lower appellate Judge failed to correctly appreciate. He invited my attention in this regard to the statement of Patwari Halqa who deposed to the fact that the vendees-defdts were not owners in this village and that the land in suit had been entered (in the sale mutation Ex.P.W.2/1) as having been purchased for the construction of house. He also referred to the statement of Abdul Khaliq, the father of all the three vendees-defdts, who categorically stated that the defendants, who were his sons, had purchased the suit land for the construction of house and that they did not possess any other property or house (in this village). He also denied the suggestion made by the other side that he had transferred his house in favour of the defendants who were in service for more than 17/18 years.
The learned counsel further submitted that the respondent (plaintiff) had not produced any cogent evidence to prove that the petitioners were owning any other property in this village and his admission at the end of cross-examination that the houses and shops to which he had referred in his statement were their ancestral property, clearly indicated that they did not own any other property in this village by purchase or acquisition. The learned counsel contended that in view of denial by their father Abdul Khaliq of having transferred houses in favour of the defendants (petitioners), the burden heavily shifted to the respondent (preemptor) to prove the factum of such transfer by leading cogent and convincing evidence in that respect, which he did not. The learned counsel submitted that the learned lower appellate Judge did not advert to all this evidence available on record and recorded his finding on issue No. 2 on mere conjectures which were without basis.
8. The learned counsel for the respondent contended that strict proof of the ingredients of section 5(c) of the N.-W.F.P. Pre-emption Act was not available on the record, especially that the land in suit was purchased by the petitioners for the construction of residential house for their own occupation and in view of this fact, the findings reached by the learned lower appellate Judge did not call for interference. The learned counsel for the respondent, however, did not support the finding of the learned lower appellate Judge, and very rightly so, on the point that since share out of joint property had been purchased, exemption u/s 5(c) of the N.-W.F.P. Pre-emption Act could not be claimed, because contrary view has been taken on the point in cases reported as PLD 1985 Pesh. 99, 1979 SCM R 359 and 1985 SCM R 926.
9. I have considered the arguments of the learned counsel for the parties in the light of material available on the record. The arguments advanced by the learned counsel for the petitioners are not without substance. The sale mutation indicated purchase for the construction of house. No doubt, Muhammad Riaz, one of the vendees, did not appear in Court and did not authorise his father Abdul Khaliq to be his attorney, but that would not mean that the statement given by Abdul Khaliq, who being father had full knowledge of the facts and also appeared as witness for all the defendants could not be used by him as evidence in defence. The learned lower appellate Judge was also wrong in insisting on the personal appearance of the other two vendees as witnesses in the case when their attorney had appeared in the witness box. The vendees were in service and two of them were out of Pakistan, as even admitted by the plaintiff, and in such circumstances they could not personally appear in the case. The statement given by Patwari Halqa and the statement of Abdul Khaliq clearly indicated that the petitioners did not own any house or other property in the village and that the suit land had been purchased for the construction of house, obviously for personal occupation when all the three vendees were earning hands. It was not the case of the pre-emptor that the petitioners-defendants were not the residents of this village and no such argument was advanced on his behalf at any stage of the litigation. Their being in service or out of country in that connection, without abandonment, alleged and proved, would be regarded as temporary absence and could not deprive them of their status of being residents of this village. The learned lower appellate Judge did not advert to all these facts while recording finding on issue No. 2, which has resulted in grave injustice. The preemptor led no evidence in rebuttal and considering the entire matter on record it stood proved that the petitioners genuinely claimed protection u/s 5(c) of the N.-W.F.P. Pre-emption Act, which in the circumstances of the case was available to them. That being so, the finding of the learned trial Judge on issue No. 2 was correct and that of the learned lower appellate Judge was incorrect, being the result of misreading and non-reading of evidence available on record. The interference in revisional jurisdiction is, therefore, called for.
10. For the foregoing reasons, I would accept this revision petition, set aside the judgment and the decree of the learned lower appellate Judge and restore those of the learned trial Judge with costs throughout.