ALI HUSSAIN QAZILBASH, J.---This is a petition for leave to appeal from the order of a learned Single Judge of the Lahore High Court, dated 21-2-1989.
2. The brief facts are that Talib Hussain respondent filed a suit for possession through pre-emption in respect of the suit land. According to the plaint, Arif Hussain, the brother of the respondent, had sold the suit land through registered sale-deed executed on 7-7-1982 for an ostensible sum of Rs.90,000 whereas the actual price paid to the vendor was Rs.28,000. The respondent claimed superior right of pre-emption being the real brother of the vendor, co-sharer in the Khata and owner in the estate. It was a contested suit and as a result of the pleadings a number of issues were framed and after recording the necessary evidence the suit was decreed on 9-6-1985 on payment of Rs.90,000 as the pre-emption money. On appeal by one of the petitioners, the decree was set aside and the case remanded to the trial Court for re-trial. The suit was again decreed against the petitioners on 28-6-1986. This decree was subject-matter of another appeal by the petitioner which was partly accepted by the learned Additional District Judge, Gujrat, vide his judgment and decree dated 2-3-1988 except issue No.7-A which was to the effect:-- "Whether the defendants are entitled to recover the incidental charges of registered sale-deed and District Council Tax besides the sale price?" and remanded the case to the trial Court to decide the above issue after affording the parties an opportunity to produce evidence. This judgment was impugned in the High Court through a Civil revision petition which was dismissed on 21-2-1989 except to the extent that the respondent/pre- emptor shall deposit Rs.9,000 with the trial Court before 27-4-1989 for payment to the vendees on account of incidental charges, hence this petition.
3. The only question urged by the learned counsel for the petitioners in support of the petition was that there was ample and cogent evidence on the record to establish that the respondent had taken part in the sale transaction and thus had waived his right to pre-empt the sale. Considering his argument in the light of the evidence on the record, we think that the conclusion arrived at on the question of waiver by the learned Single Judge is unexceptionable. Though the witnesses who have appeared for the petitioners/defendants at the trial have deposed that Talib Hussain respondent took part in the transaction but this was a mere oral assertion. Had he been present at the time of the sale, the petitioners would have obtained from him a clear undertaking that he would not pre-empt the sale. On the other hand, the evidence produced by the respondent was that Talib Hussain was not at all present in his village on the crucial day and did not participate in any manner in the sale transaction. This evidence has gone absolutely unrebutted.
4. Thus finding to force in the petition, the same is dismissed.