FAZAL ILAHI KHAN, J.---This is an appeal by leave of the Court to for consider the contention of the learned counsel for the appellants whether the learned High Court as well as the District Judge did not properly appreciate the evidence on record in holding that in the absence of any evidence that the sales' A made through Mutations Nos. 635, 636 and 641 were the subject-matter of preemption suits. The vendees/respondents have become co-sharer in the suit land on that score in dismissing the appellants/plaintiffs' suits for pre-emption.
2. Facts of the case briefly stated are that the respondent/vendee purchased land total measuring 38 Canals 3 Marla's from various vendors through various mutations including land measuring 15 Canals 5 Marla vide Mutation No, 630. The land measuring 15 Canals 5 Marla's was further sold to Fazal Hussain vide Mutations Nos. 656 and 658. As the said subsequent vendee had superior right of pre-emption, therefore, the appellants did not pre-empt those sales, however, they filed suits for pre-emption for the land sold to the respondents through Mutations Nos. 635, 636 and 641 in the Civil Court. In the instant case, which pertains to the land sold through Mutation No, 653, after due contest the appellants' suit was decreed by the trail Court on 7-1-1970 subject to deposit of the pre- emption money Rs,1,050, subject to adjustment of amount already deposited, within a period of one month. The respondents/vendees challenged the judgment and decree in appeal filed in the Court of District Judge, Gujrat who was pleased to accept the appeal, set aside the judgment and decree of the trial Court on the ground that certain sale transactions were not pre-empted therefore, the defendant/vendee had become co-sharer in the suit land, dismissed the suit. The aforementioned judgment and decree of the learned District Judge was challenged in R.S.A.151 of 1971 in the Lahore High Court but the same was dismissed by taking judicial notice of the fact that there was no proof that the sales made to the respondents through Mutations Nos. 635, 636 and 641 were also pre-empted. The aforementioned judgment of the Lahore High Court is assailed in this appeal.
3. Learned counsel for the appellant in support of his contention that the appellant did pre-empt the sales made in favor of the respondents through Mutations Nos. 635, 636, 643 and 653 produced before us a schedule, copy of which was supplied to the learned counsel for the respondents, to show that in fact all the sales made in favor of the respondents have been pre-empted including sales through Mutations No, 635, 636, 643 and 653.
4. With regard to sale through Mutation No, 653 the learned counsel pointed out that suit in respect thereof was initially decreed on 30-9-1975 but on the acceptance of the vendees' appeal the case was remanded to the trial Court where after the trail Court dismissed the suit on 18-9-1986. The appellants' appeal against the judgment and decree was dismissed by the learned Additional District Judge on 27-10-1986 on the ground that no decree could be passed after 31-7-1986. The appellants' R.S.A. Against the judgment and decree (Appeal No, 2 of 1987) was allowed by the learned High Court on 5-5-1993.
' The judgments and decrees were set aside and the case was remanded which is pending decision on merits.
5. It was further pointed out that the sale through Mutation No, 636, made in favor of the respondents, was pre-empted in a suit filed in the Court of Sr. Civil Judge which was stayed under section 28-A of the Act on the appeal of the respondents which is pending for decision after its revival in terms of the aforementioned order.
6. That sale transaction through Mutation No, 641, was pre-empted in a suit which was decreed by the learned trial Court on 30-9-1975. Respondents filed an appeal against the judgment and decree before the Additional District Judge which too was stayed before the Additional District Judge under section 28-A of the Act by order dated 2-11-1981.
7. It was further pointed out that the sale through Mutation No, 643 was pre-empted and decreed but as the vendee had exchanged the suit land with one Fazal Hussain, therefore, Fazal Hussain challenged it in appeal before the District Judge. The appeal was dismissed on 11-7-1978. Regular Second Appeal No, 802 of 1987, against the same filed by Fazal Hussain was allowed on 5-5-1993 and the case was remanded to the Appellate Court. Learned counsel for the appellants has also placed on file the certified copies in support of the factual aspects stated above.
8. Learned counsel for the respondents did not seriously controvert the aforementioned facts but vehemently argued that no exception could be taken by the judgment of the learned High Court as well as to that of the District Judge as the appellants then were unable to prove that any proceeding for enforcement of their rights of pre-emption in respect of the sales made in favor of the respondent through Mutation Nos. 635, 636 and 641 were pending before any competent Court.
9. Be that as it may, learned counsel for the appellants has placed on file the relevant documents showing that the sales through the aforementioned three mutations made in favor of the respondents have been pre-empted and that on 'final decision is given therein for the reasons stated above, it therefore cannot be said at this stage that the respondents have become co- sharer in the suit land on the basis of such transactions. The learned counsel for the appellants also referred to the statement of one of the appellants made before the trial Court in which he has categorically stated that they have pre-empted all the sale transactions in favor of the respondents/vendees excepting the one made in favor of Ghulam Mohy-ud-Din, as in that case the property was transferred during the period of limitation to a person having superior right of pre-emption. This part of his statement was not challenged by the respondents in cross- examination and would be deemed to have been admitted in absence of any evidence in rebuttal.
10. Accordingly, we accept this appeal, set aside the judgment and decree of the learned High Court and that of the learned District Judge and remand the case to the Appellate Court for decision afresh in accordance with law. No order as to costs.