JUDGMENT SAYED ZAHID HUSSAIN, J. - Judgment of the learned Addl. District Judge, Narowal dated 12.1.1987, whereby the appeal filed by the petitioners, was dismissed by him and the judgment of the learned Trial Court was maintained, is challenged through this revision petition. It arises in the following background:-
2. Vide sale-deed dated 23.4.1980. The suit land was purchased by the petitioners from one Muhammad Arshad for a sum of Rs.2,00,000/-. A suit for pre-emption was filed by the respondents on the ground that they were co-sharers in the Khata and also owners in the village and thus having superior qualification and right they were entitled to pre-empt the same. The suit was contested by the petitioners/defendants. From the pleadings of the parties, issues were framed by the learned Trial Court. The part its had the opportunity of producing evidence which they availed.
On consideration of the evidence, so produced by the parties, the learned Trial Court in its judgment dated 25.11.985 found the respondents/plaintiffs to have a superior right as owners in the Khata and that Muhammad Din, one of th vendees, who was also owner in the Khata had "sunk his superior right after associating with other persons/vendees". The suit was accordingly decreed. The judgment of the learned Trial Court was challenged in appeal by the petitioners which appeal was dismissed by a learned Addl. District Judge who upheld the findings recorded by the learned Trial Court and dismissed the same on 12.1.1987. This is a revision petition against the same.
3. It is contended by the learned counsel for the petitioners that while recording the findings on issue No. 5, the learned Trial Court described Mauj Din, PW-2, as one of the plaintiffs, whereas, it was factually incorrect. It is contended that the plaintiffs themselves should have entered appearance so that they could be cross-examined by the defendants. The further contentions of the learned counsel is that the plaintiffs had failed to prove their superior right and the admission of Khadim Hussain, DW-2, could not be made use of for a judgment in their favour. It is further contended that in the written statement it was specifically pleaded that the suit was time-barred but no issue was framed by the learned Trial Court. In support of his contention he relies upon Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25) and Fazal Elahi v. Dewan Ali (deceased) (represented by Legal Heirs) and others (1984 SCMR 1404).
4. As against this, the learned counsel for the respondents contends that the two Courts on consideration of the evidence before them have come to a conclusion that the respondents/plaintiffs had a superior right on account of their being co-sharer in the Khata, the said findings cannot be upset in revision. It is further contended that Muhammad Din, admittedly, had associated with him, the other vendees, who were strangers and the principle of sinker had been rightly applied by the two Courts below. It is contended that the respondents had become co-sharer in the Khata vide Ex.P-1 dated 11.4.1979 and apart from the other evidence, admission by Khadim Hussain, DW-2 fully justified the superior right of the respondents/plaintiffs. It is contended that non-framing of issue as to limitation does not make any difference whatsoever; firstly, that no attempt was ever made by the petitioner for such an issue before either of the Courts below, and secondly, the suit was tiled on 364th day i.e. a day before the expiry of the limitation and was well within the limitation.
5. In arriving at the conclusion on issue No. 1 as to the superior right of the respondents/plaintiffs, the learned Trial Court relied upon Ex.P-1, the sale-deed in favour of the respondents/plaintiffs.
Apart from the other documentary evidence, the statement of Mauj Din, PW-2, and the admission of Khadim Hussain, DW-3, that the plaintiffs were co-sharers in Khata was relied upon by him. The learned Appellate Court also affirmed the findings of the learned Trial Court. My perusal of the evidence also leads to the same conclusion. There is no misreading or non-reading of any material piece of evidence which could be a basis for agitating the concurrent findings of fact recorded by the two Courts below.
6. The contention of the learned counsel for the petitioner that the respondents/plaintiffs should have entered appearance as a witness, is not tenable for the reasons that Mauj Din, PW-2, had appeared as their attorney and his authority to depose was not disputed or challenged before the learned Trial Court. His statement as attorney is of the same value as of the respondents/plaintiffs.
This is not all, even Khadim Hussain, a vendee/defendant admitted that the plaintiffs/pre- emptores were already owners in the Khata.
7. Muhammad Din, who could be regarded as having an equal status as that of the plaintiffs/pre- emptores had associated with him the other vendees, who were strangers. This way he lost his right and sunk to the status of a stranger. He accepted the judgment of the learned Trial Court and did not i.e appeal there-against nor he is petitioner before this Court. The principle of sinker was thus correctly applied by the two Courts below in view of Mst. Fateh Bibi v. Ahmad Khan and 6 others (PLD 1971 Lahore 171) and Sultan Muhammad and 3 others v. Nawab Khan and others (PLD 1982 Lahore 568). The reliance of the learned counsel for the petitioners on Fazed Elahi's case (supra) is misplaced and not attracted to the facts and circumstances of the case. The said case had its on peculiar facts. Likewise, the objection as to the limitation and non-framing of issue by the learned Trial Court has no substance. The suit qua a transaction of 23.4.1980 filed on 22.4.1981 was within limitation, that they may be the reason that no effort was made by the petitioners for seeking an issue about the limitation.
8. For the reasons, stated above, I do not find any justification to interfere with the judgments of two Courts below. This petition has no merit and is accordingly dismissed. No order as to costs.