1. SAIDUZZAMAN SIDDIQUI, J.--The petitioners are seeking leave to appeal against the judgment of a learned Judge in Chambers of Peshawar High Court dated 1-3-1995 whereby Civil Revision Application No.190/94 filed by the petitioners was dismissed.
2. The relevant facts of the case are that land measuring 9 Kanals and 2 Marlas bearing Khata No.579/948 and Khasras Nos.5, 6 and 7 situated in village Banda Piran, Tehsil and District Mansehra (hereinafter to be referred as the suit land only) was sold by Ghulam Abbas in favour of the petitioners. The mutation a in respect of the sale was attested in the Revenue Record on 29-8-1988.
3. The predecessor-in-interest of respondents, Shah Jehan Khan, instituted a suit on 27-9-1988 before the Senior Civil Judge for possession of the suit land through pre-emption. It was alleged by the respondents' predecessor in the suit that although sale consideration of suit land was mentioned in the mutation as Rs.5;00,000 but in fact the price of the suit land paid by the petitioners to the vendor was Rs.1,00,000 only. The suit was contested by the petitioners but after recording evidence of the parties, the trial Court decreed the suit. The petitioners filed an appeal before the Additional District Judge, Mansehra, which failed whereafter the petitioners challenged the to concurrent judgments and decrees of the Courts below in Civil Revision Application No.190/94 which to met the same fate. The petitioners are now seeking leave to appeal against the judgment of learned Judge in Chambers dismissing revision application.
4. Mr. M. Bilal, Advocate, the learned counsel for the petitioners in support of the petition firstly, contended that the evidence of P.Ws. Was not properly appreciated by the Courts below in holding that Talab-e-Muwathibat and Talab-e-Ishad were not properly made by the pre-emptor in assertion of the right of pre-emption. The second contention of the learned counsel for the petitioners is that the findings of the first Appellate Court and that of the learned Judge in Chambers that the market value of the suit land was Rs.2,31,938.98, which was fixed as price of the suit land for the purpose of pre-emption, was arbitrary as there was ample evidence on record to show that the transaction of sale entered into between the petitioners and seller Gulam Abbas was fixed at Rs.5,00,000 which was paid by the petitioners in presence of Tehsildar who effected the mutation in favour of the petitioners.
5. In so far the first contention of the learned counsel for the petitioners is concerned, the learned counsel has relied on the contradiction between the statement of Atti Khan P.W.6 and Faqir Altaf P.W.7. It is contended by the learned counsel for the petitioners that Atti Khan in his evidence stated that while he had gone to see Shah Jehan (predecessor of respondents in the hospital 5 days after the attestation of the mutation) and was standing alongwith Faqir Altaf, Taj Muhammad son of Shah Jehan Khan came and asked him to accompany to Mansehra so as to scribe the notice of Talab-e-Ishad which was to be issued to the petitioners. The learned counsel contended that Faqir Altaf in his statement before the Court in cross-examination admitted that at the the Atti Khan visited Shah Jehan Khan, deceased, he was not present. On the basis of this contradiction in the statement of Atti Khan and Faqir Altaf, the learned counsel contends that the Court should not have relied upon the statement of Atti Khan for the purpose of proving Talab-e-Muwathibat by deceased Shah Jehan Khan. The contention of the learned counsel for the petitioners has no force.
6. This Court cannot disturb a concurrent finding of fact recorded by the Courts below on reappraisal of the evidence unless it is shown that the Courts below either misread the evidence or perversely appreciated the evidence. Merely because on fresh reappraisal of the evidence this Court would reach a different conclusion is no ground to disturb the concurrent finding of Act recorded by the Courts below. It may be mentioned here that Atti Khan was cited as a witness to the Talab-e- Muwathibat raised by the deceased Shah Jehan Khan and his statement was found consistent in this behalf by all the three Courts below. Atti Khan in his evidence stated that when he visited Shah Jehan Khan in the hospital and informed him about the sale of land he immediately made Talab- e---Muwathibat to assert his right of pre-emption, this part of the testimony was analysed by the trial Court as well as first Appellate Court and once again by the revisional Court and was held to be consistent. The learned counsel has not been able to point out any infirmity in the conclusion of the Courts below in so far this aspect of the statement of Atti Khan was concerned. The second part of the statement of Atti Khan wherein he stated that while he was standing alongwith one Faqir Altaf, Taj Muhammad son of Shah Jehan Khan came and asked them to accompany him to Mansehra to scribe the notice to be sent to the defendants.
7. This part of evidence of Atti Khan does not relate to the fact relating to Talab-e--Muwathibat. Apart from it, this part of the evidence does not show that the incident which was being narrated by Atti Khan took place in the hospital where he visited Shah Jehan Khan. In any case, we are not entitled while hearing this leave petition to go into reappraisal of the evidence as there appears to be no misreading of evidence by the Courts below. Faqir Altaf was one of the witnesses to the Talab-e- Ishad and it is not disputed before us that he did sign on the notice sent to the petitioners confirming making of Talab-e-Ishad, as one of the witnesses. The fact that Faqir Altaf in his evidence before the Court stated that at the the Atti Khan visited Shah Jehan Khan, he was not present, does not in any way reduce the validity of his evidence in so far his attestation as a witness to the Talab-e-Ishad was concerned, We may also mention here that the contention of the learned counsel that Talab-e-Muwathibat and Talab-e-Ishad were not established on record through the evidence, was never pressed before the High Court in the revision petition. In these circumstances, we would repel this contention of the learned counsel for the petitioners.
8. The second contention of the learned counsel for the petitioner is that there was evidence on record to show that the transaction in respect of the suit land entered into between the petitioners and seller Ghulam Abbas was for a sum of Rs.5,00,000 but the learned Judge in Chambers did not consider the same. This contention of the learned counsel for the petitioners has equally no force.
9. The statement of D.W.6, the only witness who supported the petitioners on the question of payment of a suns of Rs.5,00,000 by the petitioners to the seller, was disbelieved by the Courts below. The learned Judge while upholding the finding of the first Appellate Court fixing market-value of the suit land as Rs.2,31,938.98 observed that no reliance can be placed on the testimony of Ali Gohar who has himself admitted in his statement that he had weak memory and was not even able to state before the Court whether the said amount of Rs.5,00,000 was paid by the petitioners to the seller during day the or at night the. The learned Judge while upholding the findings of the first Appellate Court in this regard further observed that the non-production of other witness who had allegedly witnessed the transaction of sale would lead to an adverse inference in the circumstances of the case. We have also noticed that according to the contention of the petitioners a sum of Rs.5,00,000 was paid to the seller in presence of a Revenue Officer who attested the mutation in favour of the petitioners. The learned counsel admits that the officer who effected the mutation was not produced in evidence. In these circumstances, the inferences drawn by the Courts below on basis of the evidence in the case can neither be described as arbitrary nor perverse so as to call for our interference in the case. There is no merit in this petition, which is, accordingly, dismissed and leave to appeal is refused.