' This appeal under section 100, C.P.C. Arose out of a suit for possession through pre-emption filed by Muhammad Yousuf against Muhammad Afzal, the predecessor-in-interest of the present appellant, claiming superior right of preemption on the basis of ownership in the estate. The suit was resisted by the aforesaid Muhammad Afzal vendee by taking various pleas including the one that the respondent-plaintiff was not possessed of the superior right of pre-emption as against him as he was himself a collateral of Muhammad Naseeb vendor. The learned trial Court, after framing the necessary issues and recording evidence of the parties dismissed the suit returning, the finding on issue No,5 that the vendee was a collateral of the vendor and as such has the superior pre-emptive right as against the plaintiff. The findings on other issues need not be mentioned as issue No,5 is the only issue, which was agitated in the first appeal filed by the respondent pre-emptor as well as in the present second appeal. The finding on issue No,5 recorded by the trial Court was reversed in appeal by the learned Additional District Judge vide his judgment and decree dated 8-4-1978. This led to the filing of the present second appeal.
2. I have heard the learned counsel for the parties. Learned counsel for the appellant submitted that the learned first Appellate Court acted illegally in reversing the finding recorded by the learned trial. Court and holding that the defendants had failed to establish that Muhammad Afzal was a collateral of Muhammad Naseeb vendor. He added that even if the documentary evidence comprising of Shajra Nasab (Ex.D.3) and the report (Ex.D.2/2) is ignored still the oral evidence produced by the defendant was sufficient to establish the claimed relationship. Learned counsel for the respondent in reply supported the judgment of the first Appellate Court and the reasons given therein.
3. I have gone through the evidence on record as well as the two judgments of the learned Courts below. The claim of the plaintiff that he was owner in the estate was otherwise not disputed. The vendee's claim that he was a collateral of the vendor was, however, controverted. The vendee- defendant to prove his status brought on record documentary evidence comprising Ex.D.3 and Ex.
D.2/2. According to Ex. D.3 Fateh Khan had six sons, namely, Muhammad Afzal, Nur Ahmad, Ghulam Saroo, Faiz Ahmad, Nazir Ahmad and Muhammad Tufail. Ghulam Saroo had one son Muhammad Iqbal, who, in turn, had a son named Muhammad Naseeb. Another person is named as Ghulam Rasul and under his name two names i,e. Muhammad Hussain and Muhammad Aslam have been mentioned without connecting them with the indicatory line. The third person entered in this pedigree table is Muhammad Shafi with three sons, namely, Nur Ahmad, Ijaz Ahmad, Abbas Ahmad. One Niaz Ahmad also stands mentioned but he is not connected with Muhammad Shafi by drawing a line. As per report (Ex.D:2/2) made on some application submitted by Muhammad Afzal, the Patwari has reported' that in the Shajra Nasab, the name of the father of Muhammad Afzal is shown as Fateh .Khan while in Jamabandi the description entered reads Muhammad Afzal son of Ghulam Rasul. These documents were not relied upon by the learned first Appellate Court observing that the case of Muhammad Afzal vendee is that he is son of Ghulam Rasul and not Fateh Khan. In view of this discrepancy learned counsel for the appellant did not place reliance on Shajra Nasab Ex.D.3. He took up the position that the oral evidence of four witnesses, namely, Muhammad Naseeb (D.W.2), Muhammad Sharif (D.W.3), Ahmad Din (D.W.4) and Bilal Afzal (D.W.5) established that Muhammad Afzal was a collateral of Naseeb vendor. This evidence has not been believed by the learned first Appellate Court for the detailed reasons given in the judgment. The reasons so given and the conclusions drawn cannot be said to be arbitrary or whimsical. The plea of the learned counsel for the appellant that Muhammad Naseeb (D.W.2) the vendor and Muhammad Sharif (D.W.3) should have been believed as they being the family members will be supposed to have special means of knowledge of the claimed relationship has no merit.
Muhammad Naseeb is the vendor himself. He is, therefore, not an altogther independent witness.
Muhamamd Sharif in cross-examination stated that Muhammad Afzal son of Ghulam Rasul was his first cousin while the name of his father is Nazir Ahmad. He further deposed that Ghulam Sarwar had five brothers but while describing the names of the five brothers he altogether omitted the name of Ghulam Rasool, who was assertedly the father of Muhammad Afzal. Moreover the statements made by these witnesses do not qualify the test laid down by Section 50 of the Evidence Act. It was pointed out in Ghulam Muhammad and another v. Allah Yar and others (PLD 1965 (W.P.) Lahore 482) that "it is the opinion expressed by conduct of any person who has special means of knowledge about the relationship which is relevant. The opinion of a competent witness mus be expressed by conduct and in case it is not so relevant based on conduct would be irrelevant." In this Lahore case reference is made to Lakshmi Reddi Venkata Reddi (AIR 1937 PC 201) wherein the statement to the effect that "Venkata Reddi is the father of Lakshmi Reddi and Veera Reddi is the father Venkata Reddi" was held to be plainly insufficient to establish the relationship The statements made by the witnesses in the instant case are also of the same nature. These statements as such were, therefore, rightly held to have no established the claimed relationship.
For the reasons given above, no interference is warranted in the impugned judgment under section 100, Civil Procedure Code.
' Before parting with the judgment, it may be noted that the learned counsel for the respondent during arguments offered to pay Rs,16,000 in all for the land in dispute. The offer was made with a view to allowing fair compensation of the land in question in terms of the observations made in Ghulam Qadir v. Nawab Din PLD 1988 SC 701 (706). The offer made is accepted. Rs, 8,000 inclusive of the Zar-e-Panjum stands already deposited. The balance amounting to Rs,8,000 shall, therefore, be deposited by the Respondent-pre-emptor by or before 17-6-1989 with the trial Court as offered and undertaken. In case of failure to comply with the undertaking given the respondent-plaintiff will forfeit the right to execute the decree and his suit shall stand dismissed. The appeal is disposed of in terms mentioned above. The parties are, however, left to bear their own costs.