MALIK MUHAMMAD QAYYUM, J.-The sale of land measuring 57 Kanals 4 Marlas situate in Chak No.268/RB Tehsil and District Faisalabad was pre-empted by the respondent by filing a suit on 4th of May, 1974 in which he claimed to have superior right of pre-emption vendor being real matcrfnal uncle of the respondent and also co-sharer in the land. The suit was decreed by the trial court on 14th of February, 1978. This decree was maintained on appeal by the Additional District Judge, Faisalabad on 17th of January, 1978. Hence this regular second appeal.
2. The appeal was admitted to consider the question that the lower appellate court had decreed the suit on the basis of a right not pleaded in the plaint. The learned counsel for the appellant has raised same contention and has further argued that the respondent-plaintiff had failed to prove that he had any superior right of pre-emption as against the respondent. In this context the learned counsel submitted that as the respondent had failed to appear as his own witness, this omission was fatal to his case and the suit filed by him should have been dismissed on this ground alone.
1. None of the contentions raised by the learned counsel for the appellant have any force. It is evident from a perusal of the plaint itself that the respondent had categorically asserted his superior right of preemption as being the nephew of the vendor and on the ground of being a cosharer in the land. Both the courts after appraising the evidence on the record came to the conclusion that the vendor Ghulam Sarwar who was the real maternal uncle of Noor Muhammad respondent pre-empt or. It cannot, therefore, be said that the respondent had not based his superior right of preemption on the ground of relationship with the vendor in the plaint. DW2- Abdul Hameed who appeared as the Special Attorney of the appellants before the trial court has admitted that the respondent was the sister's son of Ghulam Sarwar appellant. DW.I Muhammad Ishaquc who was examind by the appellant also admitted this fact. In the face of this categorical admission on the part of the attorney of the respondent his only other witness the failure of the respondent-plaintiff to appear as his own witness becomes absolutely immaterial. It is not denied by the learned counsel that sister's son is entitled to inherit the estate of his maternal uncle as a distant kindred. Consequently, the superior right of pre-emption of Noor Muhammad respondent stood established on the record on the basis of his relationship with the vendor. It is therefore, not necessary to decide in the circumstances of this case, as to whether the respondent was a co- sharer in the land or merely an owner in the estate.
In view of what has been stated above this appeal has no force and is dismissed leaving the parties to bear their own costs.