The facts necessary for the disposal of this second appeal under section 100, C.P.C. Are that Hassan Shah pre-emptor respondent filed a suit for possession through pre-emption of the land in dispute claiming superior right of pre-emption on the ground of being Yakjaddi of Muhammad Shah and Yousaf Shah vendors which qualification, it was asserted, was not possessed by Nazir Ahmad vendee. It was further asserted that the sale price of Rs. 14,000 was fictitiously shown in order to defeat the superior right of pre-emption and that the land was actually sold for only. Rs. 6,000. The vendee-appellant resisted the suit and the learned trial Court after framing the necessary issues and recording the evidence decreed the suit of the respondent-pre-emptor on payment of Rs.
10,800 including zare-punjam. This was done vide judgment and decree dated 9-2-1974 holding that Muhammad Shah and Yousaf Shah vendors were sons of Ahmad Shah who in turn was real brother of Pir Shah father of Hassan Shah plaintiff. Nazir Ahmad vendee preferred first appeal but the same was dismissed by the learned District Judge, Gujrat vide judgment and decree dated 31- 5-1975. This led to the filing of the present second appeal.
2. Learned counsel for the appellant-vendee argued that finding on the question of relationship returned by the learned trial Court and affirmed by the learned appellate Court is unwarranted in law as firstly the learned trial Court has misread the pedigree tables Exhs. P4, P5 and P6 on record and secondly the learned appellate Court while affirming the judgment has failed to apply its mind and to give its own reasons for upholding the said finding. It was also the case of the learned counsel for the appellant that the learned Courts below also erred in law in holding that the sum actually paid for the land was Rs. 10,800 and that Rs. 3,200 represented by the receipt Ex. Dl were not paid to the vendor.
3. The concurrent finding of fact as to the price actually paid merits no interference as the finding is not only of fact but it is also concurrent and the same does not suffer from any misreading or non- reading of any material piece of evidence. This plea is, therefore, repelled. As regards the other contention, perusal of the evidence on record appears necessary. In order to prove the plea that the pre-emptors-respondents were heirs of the vendors being their collateral, besides producing on record pedigree tables Exhs. P4, P5 and P6, the pre-emptor entered the witness box as P.W. 3 and deposed as under:-- Coming to the pedigree-tables it is noteworthy that pedigree-table Exh. P6 of the year 1968 and pedigree-table Exh. P5 of the year 1911-12 pertain to Hadbast No. 169 Patti/Taraf Ganjah whereas in pedigree-table Exh. P4 for the year 1966-67 there is no entry as to the Patti/Taraf to which the same pertains. Pedigree-table Exh. P4 according to the learned counsel for the pre-emptors connects Hassan Shah pre-emptor with the vendors. This pedigree-table Exh. P4 however has not been connected with the other two pedigree-tables Exhs. P5 and P6. It will be seen that as per entries of Exh. P5 (pedigree-table of 1911-12) Pir Shah had a brother named Ahmad Shah who had a son named Syed Akbar but in Exh. P4 (pedigree-table of 1966-67) neither any brother of Pir Shah nor the son of said brother has been shown. Moreover A.I Shah the father of Pir Shah has been shown in line with Ghani Shah son of Qasim Shah of the other branch (See Exhs. P5 and P.6) whereas Pir Shah father of Hassan Shah in Exh. P4 has been shown in line with Mir Ahmad who appears not to be belonging to the said generation. Mir Ahmad as per pedigree-table Exh. P5 is son of Said Ahmad who was son of Haider A.I who in turn was son of Ghani Shah. Thus Pir Shah and Haider A.I both belong to the same category/generation then Pir Shah of Ex. P4 does not belong to the generation of Mir. Ahmad. These discrepancies should have been resolved by producing documentary or oral evidence but there is not even oral evidence on record to connect the pedigree-table Exh. P4 with the pedigree-tables Exhs. P5 and P6 and to establish the claimed relationship. The statement of Hassan Shah also does not help him. Learned trial Court, it was admitted by the learned counsel, misread the pedigree-tables Exhs. P4 to P.6 as according to him the vendor was son of Ahmad Shah the real brother of Pir Shah father of the plaintiffs-pre-emptors. The learned appellate Court failed to give reason for' affirming the finding in this respect. The finding recorded and affirmed is liable to be set aside even in second appeal as the same is contrary to record. The respondent as is apparent from the discussion above has failed to establish the claimed relationship and as such has not been able to substantiate the preferential right of pre-emption.
4. For the reasons given above the finding on issue No. 1 is hereby set aside, 6 the judgments and decrees of both the learned Courts below are set aside and the suit of the plaintiff-respondent thus fails and is hereby dismissed. Second appeal, therefore, succeeds and is hereby accepted with costs.