1. SALAHUDDIN AHMED, J.-This petition for special leave to appeal arises out of the respondent's suit for possession by redemption.
2. Mir Abbas alias Syed Abbas Shah, predecessor of petitioners Nos. 1 to 4, and petitioner No. 5 Syed Zar Shad Shah, are the two sons of Syed Jafar Shah. They purchased 19 kanals and 13 marlas of land bearing khasra Nos. 202, 13 and 14 situate is the area of village Surkh Dheri, District Swabi for a consideration of Rs 9,000. On the 25th of March 1966 respondent Mst. Ghafia Begum brought a suit for possession by pre-emption of the land on the ground that she was contiguous owner and participator in the immunities of the land, and had thus a superior right of pre-emption.
3. Before any evidence could be recorded Mir Abbas made an application that the vendees- defendants had purchased Khasra No. 5 measuring 1 kanal and 6 marlas by a registered deed of sale dated the 29th of July 1966, and had thus improved their position, and, therefore, the proceedings in the suit should be suspended. The suit was accordingly stayed under, section 29 of the Pre-emption Act on the 30th of November, 1966. On the application of the plaintiff, however, the suit was resumed, and on the 23rd of February 1968, a decree for possession by pre-emption of 16 kanals and 16 marlas of land bearing khasra Nos. 13 and 14 only was passed in her favour. Her suit as regards khasra No. 202 was dismissed.
4. The defendants-vendees preferred an appeal but it was dismissed by the learned Senior Civil Judge. During the hearing of this appeal the objection was only confined to the finding on issue No. 1 namely whether the plaintiff bad a superior right of pre-emption. The learned Senior Civil Judge observed in his order that the learned counsel for the defendants-vendees (the petitioners herein) rightly did not press his plea that his clients had improved their status by acquiring land through the aforesaid registered deed, inasmuch as in view of amendment in section 17 of the Pre-emption Act, any improvement otherwise than through inheritance or succession made in the status of a vendee-defendant after the institution of a suit for pre-emption, would not affect the right of the plaintiff. The said amend--ment was made by West Pakistan Act No. 6 of 1967. The defendants had contended before the learned Senior Civil Judge that as they were owners in khasra No. 15, which was contiguous to khasra Nos. 13 and 14, the plaintiff could not succeed on the basis of superior right. The learned Senior Civil Judge observed in this connection that this plea was not taken in the memorandum of appeal and the attorney of the defendants had categorically stated at the trial that the defendants had no land adjacent to the land in suit.
5. The petitioners preferred a second appeal before the High Court but it, too, was dismissed by a learned Single Judge of the High Court. The dismissal was preceded by the learned Judge having taken certain additional evidence relating to khasra No. 15, which the plaintiff-respondent claimed had been sold by Syed Jafar Shah, predecessor-in-interest of the defendants --petitioners by a registered-deed. The additional evidence was also required to find out whether the khasra numbers sold by Syed Jafar Shah were later substituted by khasra Nos. 15, 16 and 201.
6. The learned Single Judge found that Syed Jafar Shah had already sold his rights to the respondent, and the petitioners, therefore, had no right in the land which they claimed to be contiguous to the land pre-empted. The learned Judge also found that the khasra numbers now contiguous to the disputed land had been given to the respondent in lieu of her purchase by a registered-deed is 1947, and, therefore, the entry was erroneous to the extent that it mentioned the names of the petitioners.
7. It has been contended before us that the Courts below were wrong in holding that by virtue of the said amendment in section 17 of the Act the petitioners could not defeat the respondent's right of pre-emption after the institution of the suit inasmuch as the controversy regarding the validity and effect of the amendment had been settled by the decision of the High Court in the case of Abdul Majid v. Shahzada Asif Jah. The petitioners never raised this contention before the High Court, and they cannot, therefore, be allowed to raise it before this Court. Besides they did not press this plea at the time of the arguments before the learned Senior Civil Judge.
8. It has also been contended that the revenue record bears the names of the petitioners as co- sharers in field No. 15, and as such the respondent could not be held to have possessed a superior right. This contention omits to take notice of the fact that the presumption attaching to the record- of---rights is rebuttable and the Courts have on the basis of documentary evidence held that the entry therein containing the names of the petitioners was erroneous. The documentary evidence included registered deed as well as mutation and the record-of-rights for 1949-50.
9. The learned Single Judge was perfectly justified, and within his jurisdic--petition in taking additional evidence; and no contention to the contrary is tenable.
10. The petition is accordingly dismissed.