SAVED ZAHID HUSSAIN, J.--- Judgment dated 7.3.1978 of the learned Additional District Judge, Sialkot, whereby, the appeal, tiled by the respondents, was accepted by him and judgment of the learned trial Court dated 14.7.1975 was set aside, is the subject-matter of this appeal. It arises in the following circumstances:-
2. Suit land (3 Kanal, 3 marlas) was sold by one Hussain Bakhsh and Rehmat Khan, sons of Sardar Khan, in favour of the petitioners for consideration 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 appellant 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 are equally land owners 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 Addl. 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 he vendors. In this connection, he placed reliance on pedigree Ex.P3 and the statement of Fazal Elahi, PW.I. He also considered the evidence led by the appellants/defendants. The said judgment has been challenged through his 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 grand-mother 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 Section 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 Ex.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/plaintiff 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.) Lah 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 &, 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/plaintiff with the vendors, cannot he reopened by this Court. It is contended by him that pedigree table Ex. P3 and P4 read with the statements of Fazal Elahi PW1 and Muhammad Hussain, PW2, 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-emptot 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 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, PW1, was produced by the respondents/plaintiff, 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 Hussain 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 A.I 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 Ex.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 of the case set up by the respondents/pre-emptor (Nawab Khan) that he was heir of the vendors, the statement of Fazal Elahi PW1 assumes importance. He is a person resident of Pacci Kotli where from the respondents/preemptor 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 by profession. Keeping in view his age, residence and the profession and interaction 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 artisen has is a matter of common knowledge. He has deposed fram 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 Bihi was daughter of Zulfiqar who was married to A.I 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, PW1, 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, PW1 read with the statement of Muhammad Hussain, PW2 (son of Nawab Khan, pre- emptor/plaintiff) did establish the relationship of the vendors with them. The opinion of Fazal Elahi, PW1 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/plaintiff to prove the relationship with the vendors.
The findings of the learned appellate Court in this regard does not admit of any exception.
8. In order to determine whether the respondents/plaintiff had superior right 'of a pre-emption on account of relationship with the vendors, reference to Section 15(h) 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 and village immovable property shall vest-
(h) Firstly.............. Secondly............. Thirdly................ Provided that in case where the sale is by the Muslim the firstly and secondly shall be inapplicable, 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 All v.
Qutab Din (AIR 1936 Lah 477) and it was held that the expression "in order of succession" in the clause clearly indicates that:- "Every person who would he 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 remoter heir is defeated."
"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 this property to the 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-emptores suit is dismissed."
(underlined by me for emphasis)
Reference may here be made to Nargis Begum and others v. Muhammad Ibrahim and others (PLJ 1982 SC (A.J.K.) 35) wherein the Supreme Court . Of AJ&K 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 pre-emption 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. A.I.R. 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 preempt 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 other v. Prabh Dayal and others (A.I.R. 1938 Lah 646) and Muhammad Hayat and others v. Ghulam Murtaza (PLD 1949 Lah 53). The above view was reiterated by the Supreme Court of AJ&K 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 preemptor/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 pre-emption 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.