Mir son of Murad of village Chak Jarwar, Tehsil and District D.G. Khan, had sold a piece of land measuring 15 kanals 9 marlas situated in the area of village Chak Jarwar, Tehsil and District Dera Ghazi Khan, in favour of Imamuddin petitioner for a sum of Rs.3,000 vide sale Mutation No.1620 sanctioned on 30-10-1953. Khan Muhammad, the father of Qaim respondent, brought a suit to pre- empt this sale on the basis of his being collateral of the vendor which was ultimately decreed in his favour on 7-3-1956 by the learned Civil Judge, Dera Ghazi Khan, vide his judgment and decree of the even date. Dissatisfied by this decision on the question of sale price, Khan Muhammad took an appeal to the Court of District Judge, Dera Ghazi Khan, but it was dismissed on 28-4-1956 on account of deficiency of court-fee. Since he did not deposit the pre-emption money within the specified time, his pre-emption suit stood dismissed and the land continued to be in the possession of Imamuddin petitioner as a vendee.
2. Allah Wasaya, the brother of Mir son of Murad , filed a suit in the Court of Civil Judge, Dera Ghazi Khan, against his brother Mir and Imamuddin petitioner for seeking a declaration to the effect that the suit land sold by his brother Mir to the petitioner in 1953 was wrongly sold as he had sold his share as well without any authority. On 19-3-1979 Allah Wasaya accepted Rs.4,000 from Imamuddin petitioner and got his suit dismissed. On 7-7-1979 Qaim respondent filed a pre- emption suit claiming the compromise that ended in the withdrawal of suit of Allah Wasaya as a sale transaction. The suit was resisted by Imamuddin petitioner. The suit was however decreed on 27-7-1982 and the appeal taken to the District Judge by the petitioner also failed on 6-4-1983.
Aggrieved by this judgment and decree he has come to this Court in revision.
3. Learned counsel for the petitioner challenging the findings of the Courts below on issue No.4, submits that the compromise ending in the withdrawal of suit by Allah Wasaya was only a relinquishment of his claim and it was not a sale and as such it was not pre-emptible. In support of this contention he refers to PLD 1950 Pesh. 69, a Division Bench authority of the Judicial Commissioner's Court. Its further urged that Allah Wasaya's rights in the suit land were yet to be determined when the parties to the suit effected a compromise and his right to sell the land as an owner had not yet been established. It is further urged that the suit land, as per entries of the Revenue record, belonged to Mir son of Murad at the time of its sale in favour of Imamuddin petitioner and the name of his brother Allah Wasaya did not figure therein in any capacity and the compromise effected by the parties ending in withdrawal of Allah Wasaya's suit even otherwise did not constitute a transaction of sale to be pre-empted.
4. In reply to the above contentions the learned counsel for the respondent on issue No.l argues that Imamuddin petitioner, while appearing as D.W.2 before the trial Court, had admitted in clear terms that Qaim respondent was the collateral of Allah Wasaya and his statement was further supported by the copy of the pedigree table (Ex. P.4) and as such issue No.1 stood amply proved.
With regard to the issue No.4, the learned counsel, with reference to the contents of compromise, dated 29-3-1979 (Ex. P.1) asserts that if this document be read with the statements of Allah Wassaya (P.W. 2), and Imamuddin (D.W. 2), it clearly establishes that the compromise so entered was a sale transaction and it was so held by both the Courts below and since they recorded concurrent findings, the matter even otherwise cannot be re-opened before this Court and as such the suit was rightly decreed. In his opinion, the Peshawar authority cited by the learned counsel for the petitioner is not relevant.
5. Though the learned counsel for the respondent has addressed arguments on issue No.l relating to superior right of pre-emption the real contest between the parties is on issue No.4. The land in suit had been sold by Mir son of Murad , the brother of Allah Wasaya, in favour of Imam Din petitioner in the year 1953. Khan Muhammad, the father of Qaim respondent, had brought a suit to pre-empt this sale and after litigating with Imam Din petitioner for about 3 years, ultimately remained unsuccessful and the property continued to be in possession of the petitioner as its owner. It was in the year 1979, after the lapse of such a long period, that Allah Wasaya, the brother of Mir vendor, brought a suit against the petitioner and his brother claiming a share in the suit land on the basis of inheritance from his father. In the Revenue record brought on the file of the trial Court his name did not figure in any capacity whatsoever so far as the suit land was concerned because it was entered as the sole ownership of his brother Mir. This litigation dragged on for some time and eventually it ended in a compromise, as a result of which Allah Wasaya's suit was dismissed after he had accepted Rs.4,000 from Imam Din petitioner. It is this compromise ,the copy of which is available on the record of the trial Court as Exh.P.B., which is in controversy because, according to the respondent, it was a sale, while, according to the petitioner, it was a sort of relinquishment of his claim by Allah Wasaya by accepting Rs.4,000 from him by way of expenses of litigation.
6.Both the Courts below have interpreted this document as a sale-deed and decreed the pre- emption suit of the respondent. The learned counsel for the respondent has taken an objection about the competency of this Court to interfere in the exercise of its revisional jurisdiction on the ground that I concurrent findings of the Courts below cannot be interfered with in the revisional jurisdiction. I do not find much substance in this argument because the construction or interpretation of a document is a question of law on which a revision is entertainable by this Court and it can be adjudicated upon by it. Besides, the revisional jurisdiction is exercisable to rectify a wrong of serious nature perpetrating gross injustice and to my mind, this is a case of that category.
7. The language employed in Exh.P.l can by no stretch of imagination be termed as a sale transaction. Allah Wasaya, who had virtually no legs to stand upon, thought proper to get something from the petitioner, who too considered it a feasible proposition to rid himself of the litigation in which the two brothers had perhaps collusively involved him and after paying him a sum of Rs.4,000 got that litigation finished. The sum of Rs.4,000 paid by him to Allah Wasaya can more appropriately by described as champerty than the sale price of the land.It is, therefore, ether a relinquishment of a so-called claim by Allah Wasaya or the expenses of litigation which he received from his opponent or amount which he received was an extortion by subjecting him under duress of litigation in league with his brother. Both the Courts below, therefore, in my opinion had erred in holding it a sale transaction pre-emptible by. The respondent in the exercise of his superior right of pre-emption and their findings on issue No.4 cannot be upheld. The same are, therefore, reversed and the issue is decided in favour of the defendant-petitioner.
8. Consequently the revision petition is accepted, the judgments of both the Courts below are set aside, and the suit of the petitioner-respondent is dismissed, with costs throughout.