ALI HUSSAIN QAZILBASH, J.--This is an appeal filed by Nawab against the judgment of a learned Single Judge of the Peshawar High Court, dated 20-6-1979, whereby a revision of Sher Bahadur plaintiff (now respondent No. l) against the judgments of the learned Civil Judge, Haripur, dated 20-9-1975, and that of the appellate Court dated 3-2-1976, was accepted and the suit of respondent No. l was decreed.
2. The relevant facts are that land measuring 29 Kanals 16 Marlas bearing Khasra No.461, situate in village Khoi Darra, Tehsil Haripur, was owned by Noor Muhammad and his brother Dost Muhammad in equal shares. Noor Muhammad sold his share to Sher Bahadur, respondent No. l, through mutation No.391 attested 28- 12-1978. His brother Dost Muhammad also sold his share to Amir Khan, defendant --respondent No.2 vide mutation No. 412 attested on 28-12-1973. On 27-3-1974 Amir Khan sold his 1/16th share to Nawab appellant vide mutation No.430. Sher Bahadur respondent No.1 pre-empted the sale effected through mutation No.412 attested on 28-12-1973 claiming superior right of pre-emption on the ground of his being co-sharer and contiguity. During the pendency of the above suit, Amir Khan respondent No.2 also sold his remaining 7/16th share in favour of Nawab appellant. The suit filed by Sher Bahadur, respondent No.1, was contested which led the learned trial Court in framing of as many as six issues, of which issue No.1, which related to the superior right of pre-emption of respondent No.1, relevant for the decision of this appeal. The learned trial Court after recording the evidence produced by the parties held that "both the mutations were attested on the same date and in my opinion simply because the number of mutation sanctioned in favour of the plaintiff is earlier than the suit mutation does not give the plaintiff the right to claim the suit property as a co- sharer." The suit was thus, dismissed vide judgment, dated 20-9-1975. In appeal too, the above finding found favour with the learned District Judge, Abbottabad, who dismissed the same on 3-2- 1976. Not satisfied with the concurrent findings of fact given by the Courts below, Sher Bahadur, respondent No.1, filed a revision in the High Court, where the learned Judge upset the concurrent findings by holding: "the entry of this mutation about the transfer of title in favour of the plaintiff was made much earlier than the entry of the sale mutation in dispute, the plaintiff has a superior right of pre-emption."
The revision was thus, accepted through the impugned judgment and the suit of respondent No.1 was decreed. Leave was granted in this case to consider the question as to whether the High Court, in revision, disturb the concurrent finding of fact on an appreciation of oral evidence which was, in itself, inconclusive.
3. We have heard the learned counsel for the parties and have gone through the record of the case. It was urged by the learned counsel for the appellant that there is no proof on record that the sale as per mutation No.391, decided on 28-12-1973 had in fact taken place earlier than the sale in favour of Amir Khan as per mutation No.412 of the same date. Even mutation No.391 was neither produced at the time of evidence nor any cogent evidence led to prove that the sale in favour of respondent No. l, had in fact taken place earlier. As the record stands we think that the contention raised by the learned counsel for the appellant must prevail in that in the instant case no evidence worth the name has been produced to the effect that the sale in favour of the appellant through mutation No.391 had been completed at the time of the entry of the sale or before the actual attestation of mutation. Neither the copy of the mutation in question nor the Khasra Girdawari or for that matter any other tangible evidence has been produced by Sher Bahadur respondent No .1 to prove that the sale in his favour had in fact been completed much earlier than the attestation of mutation No.391. Thus, respondent No. l has failed to establish his superior right of pre-emption. This appeal thus, succeeds, the judgment of the High Court, dated 20-6-1979 is set aside and the suit of Sher Bahadur respondent No. l is dismissed with costs.