1. By Mutation No. 1538/Be sanctioned on 31-3-1970, Muhammad son of Bakhra sold his 46 Kanals of land at Mauza Jandanwala, in Tehsil Bhakkar to Kalla Khan for a sum of Rs.13,800. Sale of land was subject to an existing mortgage in respect of half share of it in favour of Muhammad Ramzan son of Ghulam Muhammad for the mortgage money of Rs.2,000 vide Mutation No. 988/Besanctioned on 20-1-1964.
2. Yasin son of Muhammad claimed pre-emption in respect of this sale. He asserted his superior right of pre-emption as real son of the vendor, co---sharer in the joint Khata, and, owner of the estate.
3. He disputed the sale-price shown to have been paid in the sale mutation and described the mortgage as fictitious. Pre-emption suit was instituted on 26-3-1971, in the Court of Civil Judge at Bhakkar. Muhammad Ramzan, mortgagee-defendant No. 2 in the pre-emption suit died. His heirs were substituted for him on record.
4. Vendee-defendant and mortgagee filed separate defences. Pleadings gave rise to nine issues settled on 4-5-1972. Thereupon, the parties gave evidence in support of their respective cases.
5. Successor-heirs of the mortgagee gave no evidence. On 24-5-1973, it was stated on their behalf that they had received the mortgage money and shall produce no defence.
6. Upon analysis of oral as well as documentary evidence, the trial Court found that the plaintiff failed to prove his relation to the vendor and dismissed his suit on 21-2-1974. This finding was recorded under issue No. 3. Plaintiff preferred an appeal to learned District Judge, Mianwali. It was allowed by him on 11-7-1974, and in consequence, plaintiff's suit for pre-emption was decreed in his favour, subject to his paying Rs.13,340 to the vendee-defendant on or before 21-9-1974. In default, pre- emption suit was deemed to have dismissed.
7. Aggrieved of the judgment and decree given in appeal against him, vendee Kalla Khan preferred a further appeal to this Court. It was admitted to hearing on 3-10-1974. Though the pre-emption suit was tried on number of issues in the trial Court, but the only issue surviving for decision in the second appeal was the superior right of pre-emption claimed by the plaintiff---respondent No. 1.
8. Plaintiff was dead and was now represented by his legal representatives. Ch. Shaukat Ali Saqib, Advocate represented the legal representatives of deceased respondent No. 1.
9. Short point for decision was, whether plaintiff was son of Bakhra. To establish his relationship with the vendor, plaintiff produced Mehtab alias Lalu P.W.1 and himself appeared as P.W.3 in evidence. In addition, an extract from birth register from the records of Union Council, Jandanwala pertaining to birth of his daughter Exh. P-5 and an extract from the Electoral Rolls was also produced. Latter document was not marked exhibit and did not form part of the record in terms of Rule 7 of Order XIII, Civil P.C. And could not be read in evidence. In rebuttal, vendee-defendant produced Ahmad Ali D.W.1 and himself appeared as D.W.2. D.W.1 deposed that Yasin (plaintiff) was son of Bohra and was not related to Muhammad. Similar statement was made by D.W.2. He also deposed that Yasin was son of Bohra, and, he was not related to Muhammad. P.W.1 deposed that plaintiff was son of Muhammad, and, in cross-examination stated that he had seen Muhammad who was 75/80 years of age. Plaintiff said that he was son of Muhammad. He was not cross-examined by the defendant on point of relationship. Nor he gave him any suggestion that he was son of Bohra. Who this Bohra was, was not disclosed on record. Absence of clear cross-examination on the point of relationship asserted in in--chief-examination led to a clear inference that the defendant did not question the correctness of the plaintiff's assertion that he was son of Muhammad vendor of the land. Exhibit P-5 also gave support to the relationship of the plaintiff to the vendor. On record, there was preponderance of evidence to prove plaintiffs relationship with the vendor. Therefore, the finding on issue No. 3 was not incorrect. Weight of evidence was in favour of this finding. Since, plaintiff did not own land in the revenue estate, record of pedigree was not produced.
10. In view of the aforesaid, second appeal has no substance. Consequently, it is dismissed with costs.
11. Records shall be returned.