1. ' WALI MUHAMMAD KHAN, J---Amin Khan petitioner, through the instant petition, assails the judgment of the Peshawar High Court dated 5-9-1992, whereby Revision Petition No, 536 of 1985 filed by Naubat Khan respondent against the judgment of the Additional District Judge, Swabi dated 30-6-1985, was accepted, the judgment of the appellate Court was set aside and that of the trial Court dated 21-6-1982 decreeing the suit of the plaintiff/respondent, restored.
2. ' The facts of the case, briefly stated, are that Naubat Khan, respondent herein, filed a suit for possession through pre-emption of land measuring 7 Kanals 3 Marlas out of Khasra No, 575 situated in Village Shikh Dheri, Tehsil and District Swabi, against Amin Khan, petitioner herein, who had purchased the same vide Mutation No,600 attested on 24-7-1977 mainly on the ground of ownership in contiguous property and participation in immunities and appendages such as right of way and right to discharge water. The same was duly contested by the vendee/appellant who, in his written statement, though denied the alleged superior right of pre-emption of the plaintiff/respondent but did not specifically asserted that he too, was owner of contiguous property and had equal right of pre-emption. Necessary issues in the case were framed, evidence led pro and contra thereon recorded and the learned trial Court, vide judgment and decree dated 21-6- 1982, decreed the suit of the plaintiff/respondent. However, on appeal by the petitioner, the learned Additional District Judge reversed the finding of the trial Court and dismissed the suit of the plaintiff/respondent vide judgment dated 30-6-1985 holding that the petitioner too, being an owner of contiguous property, had the equal right of pre-emption. The revision petition filed by the plaintiff/respondent, however, succeeded through the impugned order of the High Court and hence the instant petition for leave to appeal.
3. ' We have heard Mian Younis Shah, Senior Advocate, for the petitioner, and have perused the record of the case.
4. It is clear from the statement of Muhammad Saeed Patwari Halqa supported by Aks Shajra Kishtwar Exh. PW1/2 and Fard Jamabandi Exh. PW1/5 that the plaintiff/respondent was owner of Khasra No, 574 contiguous to suit Khasra No, 575 at the time of the sale transaction in question and thus had the right of pre-emption. The vendee/petitioner, on the other hand, bases his contiguity on Mutation No, 10644 attested on 19-2-1980 on behalf of Mst. Jamala and others, heirs of Abdul Shakoor in his favour in, respect of land comprised in Khasra Nos. 365 to 383/17 in the estate of Village of Khanda, a different estate than the one where the suit land is situated. This mutation was attested during the pendency of the suit and through it the vendee/petitioner cannot claim superior right of pre-emption. However, his plea is that the said mutation was attested on the basis of unregistered sale-deed executed in the year 1944. Since the land allegedly acquired by the vendee/petitioner through the aforesaid mutation form part of a different estate and Shajra Kishtwar produced by the Patwari Halqa does not show whether the said land is contiguous to the suit land or not, the learned trial Court appointed a commission for the purpose who deposed in his statement as C.W.1/1 that the two lands were separated by a lakhti. The appellate Court, however, relying on the unregistered deed came to the conclusion that the vendee/petitioner was owner of contiguous property and had equal right of pre-emption. The impugned judgment of the High Court, however, discloses that the right acquired through Mutation No, 10644 attested on 19-2-1980 was successfully pre-empted and the vendee/petitioner lost his ownership vide judgment and decree dated 30-6-1985 of the learned Civil Judge, Swabi and the judgment of the High Court dated 3-2-1992 in Civil Revision No, 462 of 1988, certified copy produced before the High Court.
5. Since these material facts have been suppressed by the vendee/petitioner in the entire proceedings, the learned High Court had to interfere in the finding of fact of the appellate Court.
6. ' Resultantly, we do not find any legal error in the impugned judgment of the High Court and by declining leave to appeal, the instant petition is dismissed.