MIAN NAZIR AKHTAR, J.-This R.S.A. Arises out of a suit for possession through pre-emption filed by Qutab Din, predecessor in interest of the petitioners. The disputed land measuring 100 Kanals situated in Mauza Malian Hans, Tehsil Lodhran, District Multan was sold by one Muhammad Islam through mutation No.32 attested on 20-12-1972 for a sum of Rs.25,000/- in favour of Mst. Gharibi who sold away the land to the present respondents vide mutation No.33. The suit was instituted to pre-empt both the sales referred to above.The right of pre-emption was claimed by the predecessor-in-interest of the appellants on the ground of being Sharik-khata and Khewatdar in the Mauza. The suit was decreed by the trial court on 29.7.1976 holding the plaintiff to be a Khewatdar. The appeal filed by the respondents was dismissed by the Addl: District Judge, Multan on 19-7-1978. Thereafter, the respondents filed RSA No.798 of 1978 in the Lahore High Court, which was accepted and the case was remanded to the trial court for fresh decision on issue No.5 vide the judgment dated 21-11-1980. The trial court was permitted to frame any additional issue relating to the equal or superior right of the appellants and the bona fide nature of transaction as alleged by the original plaintiff in the plaint.The fresh decision was ordered to be made keeping in view the real controversy between the parties and the judgment reported as Fateh Bibi Vs Ahmad Khan (PLD 1971 L 71) referred to in the remand order.
2. In the post-remand proceedings a new issue No.5-A was added regarding the alleged collusion between Mst. Gharibi and the present respondents. The parties were given an opportunity to produce evidence. Both the sides merely produced oral evidence in the post-remand proceedings.
After going through the evidence the trial court came to the conclusion that both the parties were Khewatdars of the Mauza and hence enjoyed equal status. Consequently, the suit was dismissed by the trial Court vide its judgment and decree dated 20-3-1983. The appellants assailed the decree of the trial court by way of an appeal which was dismissed by the learned AddkDistrict Judge, Multan vide his judgment and decree dated 12- 5-1984. The learned counsel for the appellants contended that the to courts below had grossly erred in holding that the respondents were also khewatdars of the Mauza. According to the learned counsel the courts below have primarily relied on Patwari's note borne on mutation No.33 (Ex.P2) to the effect that the vendees were Khewatdars of the Mauza. According to the learned counsel the said note could not create title in favour of the respondents. He further submits that the sale was made on 20-12-1972 but the respondents had produced the Jamabandi for the year 1962-63 regarding their ownership in the Mauza. In this connection the learned counsel relies on 1986 CLC 2169 to contend that the old documents of title could not be relied upon for holding that the respondents were owners in the Mauza. As regards findings on issue No.5-A the learned counsel submits that the courts below did not discuss evidence of the parties while giving finding in favour of respondents on the said issue.
3. On the other hand, it was contended by the learned counsel for the respondents that the respondents were proved to be Khewatdars of the Mauza by documentary as well as oral evidence.
In this connection the learned counsel has referred to the Jamabandi Ex.D3 and the mutation Ex.D4 and the oral evidence of DWs 1 to 3, examined by the trial Court after the remand of case. The learned counsel has pointed out that specific averments about the respondent's ownership in the Mauza were made by the DWs in the examination-in-chicf but no question was put to them challenging their assertions. Hence their depositions regarding the ownership of the respondents would be deemed to have been admitted.
4. I have considered the respective contentions of the learned counsel for the parties and examined the record. Both the courts below have given concurrent findings of fact that the parties are Khewatdars of the village and hence enjoy equal status. The appellants knew full by well that the respondents were claiming to be Khewatdars of the Mauza and had tendered in evidence mutation No.1 attested on 7.1.1965 to prove their ownership in Malian Hans. The sale made in their favour in respect of agricultural land was duly incorporated in the Jamabandi Ex.D3, Addedly, at the the when the impugned sale was made through mutation No.33(Ex.P2), Patwari had recorded a fact in the relevant column that the vendees/respondents were Khewatdars of the village. The impugned sale was made on 20.12.1972. Even at that the the Patwari had made a note that the respondents were Khewatdars of the village. This note was certainly not the foundation of title but only the supportive material regarding the title which was based on documents Ex D3 and D4.In the oral evidence of Khan Muhammad DW 1,Muhammad Afeal DW2 and Allah Yar DW3 (one of the respondents) it was specifically stated in examination-in-chief that all the respondents were owners of agricultural land in the Mauza. Their assertion was not attacked in cross-examination by the appellant. Hence their deposition would be deemed to have been accepted as correct by the appllants. In this connection the learned counsel for the respondents has referred to PLD 1982 Peshawar 42.Lt was laid down in the said judgment that if the statement of a witness was not challenged in Cross-examination it was presumed to have been accepted as laid down under section 114 of the Evidence Act. The other judgment relied upon by the learned cousel for the appellants Ghulam Akbar Vs. Iqbal Ahmad (1986 CLC 2169) is distinguishable because there was no other material except the Jamabandi of the year 1975 and it was held to be "irrelevant qua the suit filed in the year 1980. In the present case apart from the mutation and the Jamabandi there is other material from which it is sufficiently established that the respondents are khewatdars of the village where the land, subject matter of the pre-emption suit, is situated. It was also argued by the learned counsel for the appellants that at least, Aslam respondent No.4 is not proved to be an owner of agricultural land in the village because in the Jamabandi for the year 1969 (Ex P2) his name was not mentioned in the column of ownership. According to the learned counsel, Aslam was a stranger and the vendees would also suffer on the application of doctrine of sinker. The contention raised by the learned counsel has no substance. Aslam is also proved to be an owner of agricultural land through the documents Ex D3, D4 and the oral evidence of Khan Muhammad DW1, Muhammad Afzal DW2 and Allah Yar DW3. The note made by the Patwari in his official capacity to the effect that the vendees including respondent No.4 are Khewatdars in the village has its own significance. The omission of Aslam's name from the Jamabandi Ex.P7 was explained by the respondents counsel. He submitted that the respondents other than Aslam were already owners of land in Khata No.30 while Aslam had purchased land vide mutation No.1 dated 7.1.1965 (Ex.D4) in Khata No.39. Hence, his name could not be incorborated in the Jamabandi for the year 1969 pertaining to Khata No.30. The explanation sounds plausible.
5. It is significant to mention that the second sale made by Mst.Gharibi in favour of the respondents was challenged by the appellants as being collusive and fictitious and meant to defeat the appellants right of preemption. The averments made in para 2 of the plaint as vividly reflected as the appellant's awareness that the second sale made by Mst.Gharibi was in favour of the persons who could successfully defeat their right of preemption. While dealing with the averments made in paras 1 & 2 of the plaint, my learned brother Khurshid Ahmad J., as he then was, had held in the remand order," Impliedly, the superior right of the appellants (now respondents) was admitted and it can be presumed that the original plaintiff could not compete with the appellants." It is also worth mentioning that Qutabud Din the deceased plaintiff when appeared as PW1 denied his knowldege as to the respondents being Khatedars. In the post-remand proceedings, the challenge to the respondents being khewatdars appears to have been abandoned by the appellants as no such question was put to the DWs.
6. The appellants thus failed to establish any superior right of pre-emption as against the respondents. Both the parties being Khewatdars of the Mauza enjoy equal status. The courts below had, therefore, rightly dismissed the suit filed by the appellants. Hence this appeal fails and is dismissed, leaving the parties to bear their own costs.