' CH. MUHAMMAD ARIF, J.---In this pre-emption matter leave was granted against the judgment, dated 30th July, 1996, passed by a learned Judge in Chambers of the Lahore High Court, Lahore in Regular Second Appeal No,223 of 1984. Leave grant order dated 26-11-1997, reads thus:-- "This petition is directed against judgment, dated 30th July, 1996 passed by learned single Judge in Chambers of Lahore High Court in R.S.A. No,223 of 1984."
2. Facts relevant for purposes of present petition briefly mentioned are that (i) Mst. Nathi, (ii) Mst,.
Basheeri and (iii) Mst. Basi owned agricultural land measuring 22 Kanals, 16 Marlas situated in village Alhar Tehsil Pasrur which was sold by them through attorney Kabir Khan to Sher Muhammad, predecessor-in-interest of petitioners by means of registered sale-deed, dated 21st June, 1973. Late Shameer Khan (predecessor-in-interest or respondents) asserting superior right as collateral of the vendors challenged the sale and claimed possession of the land by filing suit for pre-emption. Petitioners contested the suit. Learned Civil Judge, Sialkot vide judgment, dated 17th October, 1981 decreed the suit. Vendor Sher Muhammad (predecessor-in-interest of petitioners) challenged above judgment and decree through Civil Appeal No,105 of 1983 before Additional District Judge, Sialkot which was dismissed on 23rd September, 1984. Petitioners then filed Regular Second Appeal No,223 of 1984 before Lahore High Court challenging judgments and decrees of above referred two Courts below. This petition was also dismissed by means of judgment, dated 30th July, 1996 which has been assailed through present petition for leave to appeal. Relevant observations appearing in paras. 2,3 and 4 are, however, reproduced below:--
2. The right of pre-emption was claimed by the plaintiff on the basis that he was first cousin (son of paternal uncle) of the vendors. On this issue (Issue No,6) whether the plaintiff had superior right of preemption, the learned trial Court recorded the following findings:-- ' The present suit was filed by Shameer Khan predecessor-in-interest of the present plaintiff. The suit land was alienated by Mst. Nathi etc., who according to the pedigreetable Exh.P5 are the daughters of Surajmul the uncle of Shameer Khan deceased. There is no evidence in rebuttal from the defendant side. In view of the matter, the superior right of pre-emption is proved on the file, therefore, the issue is decided in favour of the plaintiff.
3. This finding of fact was maintained by the learned appellate Court in the following words: ' It is to be noted that according to the deposition of these witnesses and the pedigreetable Exh.P-5 the vendors are the daughters of Surajmul son of Budha while Shameer Khan the original plaintiff who had died during the pendency of this suit was the grand son of this Budha.
4. Learned counsel for the appellants was unable to show that the findings of fact recorded by the learned Courts below on Issue No,6 suffer from any legal infirmity. The concurrent findings recorded are supported by the evidence on record. This appeal has, therefore, no force and is accordingly dismissed.
3. On hearing learned counsel for parties, following questions arise for consideration:--
(i) Whether without tangible proof regarding relationship of vendor Mst. Nathi and two others with predecessor of the respondents namely Shameer Khan, his superior right to claim pre-emption over suit land could be lawfully accepted;
(ii) Whether, appellate forums without making any comments or giving reasons could lawfully reject the appeals and disregard evidence available on record;
(iii) Whether documentary evidence showing glaring differerce about parentage of the vendor or plaintiff/respondents; could be consciously ignored or omitted without assigning reasons;
(iv) Whether or not the appellate forums were bound to thoroughly reevaluate evidence brought on record and rectify defects of trial Court.
(v) Whether or not the conclusions of learned single Judge in Chambers of Lahore High Court are contradictory to the conclusions in identical matter culminating in Civil Petition for Leave to Appeal No,2065-L of 1996.
4. The above points, in our opinion, require detailed examination. Accordingly, leave to appeal is granted. It is, however, observed that interim order, dated 1 1 th August, 1996 granting status quo; shall continue."
2. Raja Muhammad Anwar, learned Senior Advocate, has reiterated the pleas raised by him at the time of the leave grant order dated 26-11-1997, which are duly reflected in para.3 of the same and contended that the case of the deceased-Sher Muhammad represented through his legal representatives, is also supported by the observations made by this Court in Pir Baldish represented by his legal heirs and others v. The Chairman, Allotment Committee and others (PLD 1987 SC 145), He has sought support from headnote 'K' which, in its own turn deals with the question of estoppel by judgment and/or res judicata at pages 167/W, X and Y and 168/Z and AA. There is no need for discussing in detail the plea based upon the afore-mentioned headnote and/or pages 167 and 168 thereof. Suffice it to say that the facts and circumstances of the instant case in relation to all the questions mentioned in para.3 of the leave grant order dated 26-11-997 lead to an irresistible conclusion that the appellants had made out a case in Regular Second Appeal No,223 of 1984 for challenging the impugned judgments and decrees therein i.e, judgments and decrees of the Trial Court and that of the First' Appellate Court respectively dated 17-10-1981 and 23-9-1984. No body has entered appearance to argue the case on behalf 9f the respondents. They are, therefore, proceeded ex parte.
3. After considering arguments advanced on their behalf by the learned counsel for the appellants, we find that the respondents took contradictory stand in the case i.e,, in the plaint regarding inter se relationship of Kabir Khan and Shamir Khan. In para.3 of the plaint submitted by Mst. Nathi etc. It was stated that Kabir Khan was cousin of Shamir Khan; Nathi is the widow of Shamir Khan and in fact he is son of Surajmul. In the pedigreetable filed by them Surajmul was survived by 3-daughters only. It is, therefore, crystal clear that this contradiction cannot be reconciled in favour of the other side. The High Court was right in holding that Shamir Khan has no superior right of pre-emption. It was also correctly observed by the High Court that Shamir Khan was son of Juma Khan whereas Kabir Khan vendor was son of Surajmul. Surajmul and Juma Khan were brothers inter se. This stand is also contradicted by perusal of pages 3 and 6 of the paper book which show that Surajmul had only 3 daughters and that Extra-Assistant Settlement Officer had observed in his order that Surajmul was not son of Budha but was son of Bhool. This finding was recorded in 1973. The High Court was also right in observing that in para.3 of the plaint filed by Mst. Nathi etc, Kabir Khan had made false claim that he was son of Juma which was challenged by Shamir Khan. Therefore, Shamir Khan made a false claim regarding his parentage being that of Surajmul who died, leaving behind only three daughters.
4. It would, therefore, be seen that the Appellate Forums have not thoroughly re-evaluated the evidence on record and failed to rectify defects stated above in the judgment of the Trial Court.
Clearly, the conclusions drawn by the High Court in this cause are contradictory to its own findings in the matter which was brought before this Court in Civil Petition No,2065-L of 1996 which led to Civil Appeal No,1489 of 1997 and dismissed for non-prosecution, by a separate order of even date.
5. In the light of the above discussion, we hold that Shamir Khan, predecessor-in-interest of the respondents has no superior right of pre-emption.
6. Resultantly, the impugned judgment and decree passed by the High Court in R.S.A. No,223 of 1984 is set aside with the result that the suit tiled by the respondents-plaintiffs stands dismissed. The appeal is allowed in the above terms, with no order as to costs.