Since identical questions of law and fact arise between the same parties in Civil Revision No. 171 and Civil Revision No. 172, both of the year 1985, I propose to dispose them of by this single order.
2. These revision petitions arise out of two pre-emotion Suits. Bearing Nos. 124/1 and 125/1 of the year 1982, instituted by Ghulam Muhammad against Liaqat Khan and Nizakat Khan, petitioners herein, who had purchased by Mutation No. 2506 and Mutation No. 2507, attested on 29-3-1981, land out of Khasra No. 995. Both the sales were pre-empted by Ghulam Muhammad on the grounds of co-sharership, contiguity and participation in the immunities and appendages of the suit land. Both the suits were contested by the vendee-defendants on identical grounds which stand reflected in the following identical issues :--
(1) Whether the plaintiff has got a cause of action ?
(2) Whether the plaintiff has got superior right of pre-emption ?
(3) Whether suit property is exempt from pre-emption
(4) Whether defendants have made any improvements in the suit property, if so, to what extent and to what effect ?
(5) Whether the plaintiff is estopped to bring the present suit ?
(6) Whether the plaintiff has instituted a suit which was subsequently withdrawn, if so, its effect on the present suit ."
(7) Whether a sum of Rs. 10,000 (Rs. 16,000 in Suit No. 125/1) has been fixed and paid in good faith as sale consideration, of the suit property ? .
(8) What is the market value ?
(9) Relief.
3. On conclusion of the proceedings, the learned trial Judge decided issues Nos. I and 2 in favour of the plaintiff, issue No. 3 in the negative issues Nos. 4 5 and 6 also in the negative. On issues Nos. 7 and 8 the finding was that the sale consideration mentioned in the sale mutations was fixed in good faith and paid as sale price of the suit land and that was the market value thereof. The learned civil Judge, therefore, by judgment and decree dated 20-4-1985, decreed the suits in favour of the pre-emptor.
4. The vendee-defendants (petitioners herein) in both the suits filed two separate appeals, which were heard by the learned District Judge, Abbottabad, who, vide judgments and decrees dated 9- 10-1985, while partially allowing the appeals to the extent of improvement claimed by the vendee- defendants, dismissed the appeals in respect of the other prayer made therein.
5. The vendee-defendants have assailed the aforesaid decrees passed by the learned Courts below in these two revision petitions.
6. Haji Ghulam Basit, Advocate appeared on behalf of the petitioners and Mr. Muhammad Sarwar Khan, Advocate appeared on behalf of the respondent. They have been heard and the record of the cases perused with their assistance.
7. The first contention which the learned counsel for the petitioners attempted to raise relates to issue No. 2, the finding of the learned trial Judge wherein is that the respondent being a co-sharer in the suit Khasra and the suit Khata had a preferential right to pre-empt the sales. This finding recorded by the learned trial Judge was not assailed, as would the judgment of the learned District Judge show, by the petitioners before the learned lower appellate Judge, before whom only two issues relating to exemption from pre-emption and improvements made by the petitioners on the suit land were pressed. By not challenging before the learned lower appellate Judge the finding of the learned trial Judge on issue No. 2, the petitioners allowed that finding to become final against them, and having so become final, it could not be permitted to be re-opened by the petitioners at the revisional stage.
8. The next contention of the learned counsel for the petition, is that the findings reached by the learned Courts below on issue relating to exemption (issue No. 3) are not sustainable because firstly, the property purchased being shops was exempt from pre-emption and secondly, if it were held that the property purchased was land, then the petitioners having shifted for residing at village Kotnajibullah, where the property in suit is situate, were the residents of that village, within the meaning of clause (c) of section 5 of the N.-W. F. P. Pre-emption Act, and being such residents,not possessing any house or vacant site measuring more than one Kanal, and having purchased property in suit which even taken together was less than two Kanals, were clearly entitled to the protection afforded by the said provision of law. In his endeavour to pursuade me to accept his assertions. The learned counsel took me through the entire evidence brought on record,
9. The learned counsel for the respondents, opposing the arguments of the learned counsel for the petitioners, contends that the concurrent findings reached by the learned Courts below or, the points pressed by the learned counsel for the petitioners in this Court are unassailable, having been based on the evidence brought on record. He contends that it is established from the evidence brought on record that the property in suit is land, and not the shops, and that the petitioners are the residents of village Todu and not of village Kotnajibullah, where the property in suit is situate. He maintains that the provision of law referred to above, affording protection to a purchaser of immovable property was not attracted to the cases in hand.
10. It is undisputable that the learned two Courts below have come to concurrent findings of fact that the property in suit was land at the time of purchase and that the petitioner, were not the residents of village Kotnajibullah where the property to suit is situate. On the basis of these findings the learned Courts below, have not extended the benefit of section 5 (c) of the N.-W. F. P. Pre- emption Act to the petitioners. The learned lower appellate Judge has in this regard, after thoroughly discussing the evidence brought on record reached the conclusion, on questions of fact, which does not suffer from any illegality infirmity, misreading or non-reading of material evidence on the record. Undeniably, the onus to prove that the sales in question were exempt from pre-emption was on the petitioners. In discharge of this onus Liaqat Khan, one of the vendees, examined himself as witness for the petitioners. No other witness was examined by the petitioners in support of the defence set up by them. The statement given by Liaqat Khan before the learned trial -fudge clearly suggests that at the time of purchase the property in suit was land and was not being used then or thereafter as shops. Similarly, the 'Naqsha Tasveeri' Exh. P. W. 1/D-1 prepared by Patwari Halqa and brought by the Petitioners on record through him also suggests that the property in suit is vacant site and not the shops. This evidence led by the Petitioners before the learned trial Judge rendered the point urged by the learned counsel for the petitioners as unproved, hence baseless.
11. As to the allegation that the petitioners are the residents of village Kotnajibullah, the only evidence brought on record by the petitioners is the solitary statement of Liaqat Khan petitioner, who stated that the petitioners are residing at village Kotnajibullah. No other evidence was led by them in support of this plea. In plaints of both the suits the petitioners were shown to be residing at village Todu. The summons were, therefore, sent to them on that address and at the time of submitting written statements they did not dispute that fact, rather they themselves gave their address of village Todu, thereby supporting the assertion of the other side that they were residing at village Todu and not at village Kotnajibullah. Further, it is unbelievable, as mentioned in the statement of Liaqat Khan, that the petitioners, instead of hiring a house for residence in village Kotnajibullah, are residing in a shop which is being .Run by Liaqat Khan, one of the petitioners, especially when their village Todu is situate at a distance of two furlongs from village Kotnajibullah and the petitioners can easily come from their village to village Kotnajibullah to follow their normal pursuits. The reason given by Liaqat Khan for not residing at their ancestral village remained unsupported by any, other evidence brought on record. It is thus clear that the solitary statement given by Liaqat Khan petitioner was not enough to discharge the onus of this issue placed on the petitioners, nor was it enough to shift the onus to the other party. Noor Nassau's case (PLD 1974 Pesh. 63) relied upon by the learned counsel for the petitioners in support of his arguments, being distinguishable on facts, was of no avail to the petitioners' case inasmuch as in that case sufficient evidence had been led by the vendee to prove that he had abandoned his original place of residence and had permanently settled in the village in which land had been purchased by him. It was because of that reason, as clearly mentioned in paragraph g of that judgment, that the Court had held vendee entitled to the exemption under section 5-(c) of the N.-W. F. P. Pre-emption Act. In the cases in hand, as already pointed out, no cogent evidence has been led by the petitioners to prove that they have abandoned their original place of residence and have permanently settled in village Kotnajibullah.
12. For the aforesaid reasons, the concurrent findings of fact reached by the learned Courts below on the issue relating to exemption (issue No. 3), having the support of evidence brought on record, are unexceptionable.
13. Consequently, both these revision petitions, being without merit, are dismissed with costs.