' Judgment, dated 7-3-1978 of the learned Additional District Judge, Sialkot, whereby, the appeal, filed by the respondents, was accepted by him and judgment of the learned trial Court, dated 147- 1975 was set aside, is the subject-matter of this appeal. It arises in the following circumstances:---
2. Suit land (3 Kanals, 3 Marlas) was sold by one Hussain Bakhsh and Rehmat Khan, sons of Sardar Khan, in favour of Rs,7,000 through registered sale-deed, dated 14-7-1969. Nawab Khan Deceased, now represented by his legal heirs (respondents) brought a suit for pre-emption against the appellants claiming superior right as a relation and heir of the vendor and that he was owner in the estate. The suit was contested by the appellants ' denying the superior right of the plaintiff/pre- emptor. On the controversy spelt out from the pleadings of the parties, issues were framed by the learned trial Court. The parties produced evidence in support of their respective pleas. The learned trial Court dismissed the suit vide judgment, dated 14-7-1975, taking the view that the appellants/defendants were equally landowners in the estate and that the respondent/plaintiff had failed to establish his relationship with the vendor. An appeal was filed against the aforesaid judgment of the learned trial Court which appeal was accepted by a learned Additional District Judge on 9-3-1978, who took the view that the pre-emptor could not be held to be possessing superior pre-emptive right on the basis of ownership in the village as the vendees were also owners. He, however, reversed the findings of the learned trial Court on the issue of relationship with the vendors. In this connection, he placed reliance on pedigree Exh.P3 and the statement of Fazal Elahi, P.W.1. He also considered the evidence led by the appellants/defendants. The said judgment has been challenged through this second appeal.
3. It is contended by the learned counsel for the appellants that the assertion of Nawab Khan pre- emptor in paragraph No,5 of the plaint, that he was successor of the vendors, was denied by the petitioners/ vendees by filing written statement, and that his claim of heirship through Mst. Peeran Bibi, daughter of Zulfiqar, who was the grandmothers of the vendors was an improvement made in the evidence later on. His further contention is that the evidence brought on record in order to establish the relationship with Mst. Peeran Bibi was lacking essential pre-requisites of sections 50 and 32 of the Evidence Act. The findings of the learned Appellate Court are challenged by him, also on the ground that the statements of the witnesses produced by the respondents/plaintiffs were contradictory in material terms on which no reliance could be placed. As to the pedigree-table Exh.P3 his objection is that name of Mst. Peeran Bibi did not appear in the same and that in any case she being not an heir of Sardar Khan, father of the vendors, the respondents/plaintiffs could not be a person entitled to inheritance. In support of his contentions he has placed reliance on Ghulam Muhammad and another v. Allah Yar and others (PLD 1965 (W.P.) Lahore 482), Shah Nawaz and another v. Nawab Khan (PLD 1976 SC 767), Rokkam Lakshmi Reddi and another v. Rokkam Venkata Reddi and others (AIR 1937 Privy Council 201) and Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617).
4. On the other hand, the learned counsel for the respondents has raised a preliminary objection as to the competency of the second appeal and contends that at the relevant time on account of valuation, the same appeal was not competent. While supporting the appellate judgment, it is contended by him that the findings of fact as to the relationship of the respondents/plaintiffs with the vendors, cannot be reopened by this Court. It is contended by him that pedigree-table Exhs.P3 and P.4 read with the statements of Fazal Elahi P.W.1 and Muhammad Hussain, P.W.2, did clearly establish the relationship of Nawab Khan (pre-emptor) with the vendors. It is contended that the statement of Fazal Elahi was admissible in evidence under section 50 as he was resident of the village having direct knowledge who was of the age of 80 years when he made the statement. It is contended by him that for a pre-emptor in a pre-emption suit only a reasonable chance to inherit was sufficient to succeed in the suit.
5. As to the competency of the appeal, the learned counsel for the appellants submits that conversion of an appeal into a revision petition can at any time be ordered, he, thus, submitted that the appeal may be converted into revision. It was held in Muhammad Yusuf v. Mst. Kharian Bibi (1995 SCMR 784) that an appeal could be converted into revision even on a verbal request.
Accordingly, the appeal has been converted into revision and being disposed of as such.
6. In paragraph No,5 of the plaint, case of Nawab Khan deceased, the pre-emptor, was that he was an heir (URDU TEXT) of vendors. This assertion was denied in the written statement on which issue was framed as to whether the plaintiff had got superior right of pre-emption than the vendees. In order to prove his relationship with the vendors, Fazal Elahi, P.W.1, was produced by the respondent/plaintiffs, who stated that the vendors were sons of Sardar Khan and Sardar Khan was son of Mst. Peeran Bibi, she was daughter of Zulfiqar son of Bhola, whereas, Nawab Khan, pre- emptor, was son of Hassan Muhammad, who was son of Nawahi Dad who was also son of Bhola. In the cross-examination, it was stated by him that Mst. Peeran Bibi was wife of Ali Gohar and she used to live some time with her husband and some time with her father (Zulfiqar). It was further stated by him that Zulfiqar had adopted his grand-son Sardar Khan as son. The pedigree-table Exhs.P3 and P4 brought on record does show that the vendors were sons of Sardar Khan, the adopted son of Zulfiqar who was brother of the grand-father of Nawab Khan, pre- emptor/respondent. In the context or the case set up by the respondent/pre-emptor (Nawab Khan) that he was heir of the vendors, the statement of Fazal Elahi P.W.1 assumes importance. He is a person resident of Pacci Kotli wherefrom the respondent/pre-emptor hailed and the land was situated. He was of the age of 80 years when he made the statement before the Court on 30-10- 1974 and was Carpenter (c) (URDU TEXT) by profession. Keeping in view his age, residence and the profession and inter action with the residents of the village, his statement is entitled to substantial importance and credibility. The nature of connection with the community in a village, which such an artisan has, is a matter of common knowledge. He has deposed from his personal knowledge as to the relationship of the parties i,e,, the vendors and the pre-emptor. He has stated in clear terms that Mst. Peeran Bibi was daughter of Zulfiqar who was married to Ali Gohar and Sardar Khan was their son, who was father of the vendors. It is not disputed that Zulfiqar and Nawahi Dad were brothers (Nawab pre-emptor is grand-son of Nawahi Dad). The relationship inter se, the vendors and the respondent/pre-emptor was, thus, established on record beyond doubt. The evidence produced by the defendants/vendees was of a negative character simply denying their relationship.
7. Reliance of the learned counsel for the petitioners on Ghulam Muhammad's case (supra) does not advance the case of the petitioners inasmuch as the statement of Fazal Elahi, P.W.1, who was a well-informed resident of the village having connection with the village community and knowledge was rightly relied upon by the learned Appellate Court. Likewise, reliance on Shah Nawaz's case (supra) is misplaced as in the present case the statement of Fazal Elahi, P.W.1, read with the statement of Muhammad Hussain, P.W.2 (son of Nawab Khan, preemptor/plaintiff) did establish the relationship of the 'vendors with them. The opinion of Fazal Elahi, P.W.1 was based on knowledge and was rightly relied upon by the learned Appellate Court. The Privy Council ruling in Rokkam Lakshmi Reddi's case (supra) also does not lay down any different rule which was relied upon in Ghulam Muhammad's case (supra). In my view there was sufficient evidence on record brought by the respondents/plaintiffs to prove the relationship with the vendors. The findings of the learned Appellate Court in this regard do not admit of any exception.
8. In order to determine whether the respondents/plaintiffs had a superior right of a pre-emption on account of relationship with the vendors, reference to section 15(b) clause thirdly after the proviso may be appropriate. It is as follows:-- "Subject to the provisions of section 15, the right of pre-emption in respect of agricultural land and village immovable property shall vest---
(b) Firstly........................................
' Secondly............................................
' Thirdly............................................ ' provided that in case where the sale is by the Muslim, the firstly and secondly shall be in- applicable, and the thirdly shall read as follows:--- ' Thirdly, in the persons. In order of succession, but for such sale would be entitled, on the death of the vendors to inherit the land or property sold." (underlined for emphasis)
9. The above clause came up for consideration in Ghulam Ali v. Qutub Din (AIR 1936 Lahore 477) and it was held that the expression "in order of succession" in the clause clearly indicates that:--- "Every person who would be entitled to succeed under the law is entitled to maintain a suit for pre- emption, but if a preferential heir chooses to exercise the right then the right of the remote heir is defeated."
' In Muhammad Ali Khan v. Mt. Zewar Nisa and another (AIR (29) 1942 Peshawar 22) it was held that while deciding superiority of the right of a pre-emption under the above clause the:-- "Courts have only to keep in view the plaintiff and the vendee and no other relations of the vendor.
They have to take it that the vendor has died and have to find out as to who of the parties before them the pre-emptor and the vendee is entitled to inherit his property to exclusion of the other. The person who is so entitled has a superior right of pre-emption. If he is a preemptor he gets a decree.
And if he is a vendee the pre-emptors suit is dismissed."
(underlined by me for emphasis)
' Reference may here be made to Nargis Begum and others v. Muhammad Ibrahim and others (1983 CLC 2923) wherein the Supreme Court of Azad Jummu and Kashmir with reference to the previous case-law and in particular by reproducing the portions from Jalal Din's case (PLD 1979 SC 879) in extenso held that:-- "On a proper interpretation of the words of the clause it would appear that it conferred a right of preemption on the whole line of heirs and not merely on the next and nearest heirs at the time of sale. The right inter se would be. Determined in order of succession i,e,, the nearer heir would exclude the more remote. It may be remembered that when the question of superiority of the right of pre-emption, under section 14(b) thirdly of the Prior Purchase Act, is to be determined, one has to only keep in view the plaintiff and the vendee and no other relations of the vendor should be allowed to step in. AIR 1936 Lah.477 may be quoted on the point which says that the clause permits every agnate and cognate, however, distantly related he may be, to pre-empt in the absence of a suit by nearer heirs who has a right of succession. The sine qua non is the right of succession. The remote heir may sue for pre-emption if the nearer heir declined or omitted to assert."
10. For the said view reference was also made to Allah Din and another v. Prabh Dayal and others (AIR 1938 Lahore 646) and Muhammad Hayat and others v. Ghulam Murtaza (PLD 1949 Lahore 53).
The above view was reiterated by the Supreme Court of Azad Jummu and Kashmir in Haji Muhammad Yousaf Khan v. Abdul Aziz Khan and 5 others (PLD 1983 SC (AJ&K) 188). Thus, the consistent view is that a reasonable chance of succession by a pre- emptor/plaintiff as against the vendee who has no such chance would entitle him to a decree in a pre-emption suit.
11. Some discrepancies referred to in the statements of witnesses by the learned counsel for the petitioners here and there would not destroy the overall impact of the preponderance of evidence on the issue. The findings as to the superior right of preemption of Nawab Khan (deceased), plaintiff/ predecessor-in-interest of the respondents is supported by the evidence on record and the law applicable thereto. The judgment does not call for interference.
' As a result of the above, this petition is dismissed. No order as to costs.