' SH. RIAZ AHMED, J.---The facts in brief giving rise to the institution of this petition for leave to appeal are that agricultural land measuring 42 Kanals, 18 Marlas situated in village Khaneki More, Tehsil Chunian, District Kasur was sold by Mst. Rehmat Bibi widow and other legal heirs of Ahmed Din in favour of the petitioners Nos.1 and 2 and predecessor-in-interest of petitioners Nos.8 to 17 and respondent No,3 through an oral sale vide Mutation No, 1028, dated 13-12-1973. The share of all the five vendees was different from each other and had been specifically mentioned in the mutation.
2. Respondents Nos.1 and 2 filed a suit for possession through preemption on the ground that they were collaterals of the vendor and also their land was contiguous and irrigated through a common watercourse. The suit was contested by the petitioners and predecessor-in-interest of petitioners Nos.3 to 7 and petitioners Nos.8 to 17 through common written statement. Respondent No, 3, who was the real brother of the plaintiff, did not contest the suit. Vide order dated 19-5-1982, the suit was decreed by the learned Civil Judge.
' Petitioners Nos.1 and 2 and the predecessor-in-interest of petitioners Nos.3 to 7 and 8 to 17 filed an appeal and during the pendency of the appeal, the Shariat Appellate Bench gave its verdict in Said Kamal's case (PLD 1986 SC 360). The First Appellate Court vide judgment and decree dated 19-5- 1997 dismissed the appeal of the petitioners on the sole ground that respondent No,3, a co-vendee had not joined as appellant to assail the judgment and decree of the Trial Court and the transaction of the disputed land was indivisible and, therefore, decree for partial pre-emption could not be passed. A revision petition filed against the said judgment was also dismissed by the Lahore High Court vide order impugned.
3. After hearing the learned counsel at length, we are of the view that it is a fit case in which leave should be granted to consider inter alia the following questions:--
(i) Since the share of each of the vendee had been specified in the mutation, could it be said that it was a case of partial pre-emption?
(ii) Whether non joinder of the real brother of respondents Nos.1 and 2 (pre-emptors) was fatal?
Order accordingly.
Leave to .