' Judgment of the learned Additional District Judge, Sialkot, dated 1-6-1986 whereby the appeal filed by the respondent was accepted by him and the judgment of the learned trial Court was set aside is the subject-matter of the present revision petition which arises in the following circumstances.
2. Land measuring 21 Kanals and 11 Marlas situated in village Adamkey, Tehsil Daska, District Sialkot was sold by Muhammad Aslam in favour of the petitioner vide registered sale-deed, dated 23-4- 1979 for a consideration of Rs,40,000. The respondent/defendant filed a suit for pre-emption claiming his superior right that he was owner in the village and was co-sharer in the Khata whereas the vendee did not possess this qualification. The suit was contested by the petitioner- vendee denying the superior right of respondent-pre-emptor and claimed himself to be owner in the village. In view of the pleadings of the parties the learned trial Court framed number of issues.
Both the parties produced evidence in support of their respective pleas. On consideration and appreciation of the evidence so produced by the parties the learned trial Court came to the conclusion that the vendee-defendant had become owner in the village vide Exh.D.1 prior to the institution of the suit by the plaintiff/pre-emptor, as such the suit was dismissed vide judgment; dated 1-3-1981. The respondent/pre-emptor filed an appeal there against which appeal was heard by a learned Additional District Judge, Sialkot who reversed the judgment of the learned trial Court on the view of the matter that the fact of purchase of land by the vendee/defendant from Riaz was not mentioned in the written statement and that it was not proved on record that "vendor Riaz had a saleable title in that land or had transferred title to the respondent. He also invoked implications of M.L.R.115 to come to the conclusion that the vendee/defendant had not become owner in the village. In this view of the matter he accepted the appeal vide judgment, dated 1-6-1986 and set aside the judgment of the learned trial Court. This is a revision petition by the vendee/defendant.
3. It is contended by the learned counsel for the petitioner that the petitioner/vendee had become owner in the village by purchasing 3 Marlas of land from Muhammad Riaz vide Exh.D.1, dated 25-5- 1979 which transaction was duly proved on record by the statement of Muhammad Riaz vendor who appeared as D.W.2 in support of the sale made in favour of the petitioner/ vendee. It is contended that the non-mention of the particulars of sale in the written statement could not be a ground for setting aside the findings recorded by the learned trial Court inasmuch as the document Exh.D.1 was duly relied upon in the list of documents attached with the written statement and that the document was duly received in evidence by the trial Court without any objection by the respondent/plaintiff. It is further contended that the findings recorded by the learned trial Court were based on correct appreciation of the evidence and the learned Appellate Court acted illegally in upsetting the same. Reliance has been placed by him on Amir Jan and 3 others v. Haji Ghulam Muhammad PLD 1997 SC 883.
4. The learned counsel for the respondent to the contrary contends that Exh.D.1 was not a registered document and could be forged at any time and as such was not a reliable piece of evidence. It is contended that although the parties were residents of Daska yet it has not been explained as to why the stamp paper was purchased from Gujranwala and that there was nothing on the record to show Muhammad Riaz the vendor as owner in the village and if at all he was owner then the transaction would be hit by M.L.R.115. Reliance has been placed by him on Mst. Sardar Begum (deceased) v. Muhammad Ilyas and another 1983 CLC 1570.
5. In order to succeed in a pre-emption suit the pre-emptor is to prove his.Superior right of purchase on the date of sale, the date of suit and to A maintain the same till the date of decree In the present case sale sought to be pre-empted in favour of the petitioner/vendee took place on 23-4-1979 and the suit was filed on 22-4-1980. Before that the vendee purchased land measuring 3 Marlas from Muhammad Riaz through Exh.D.1. In the written statement the superior right of the respondent/pre-emptor was denied and it was stated that the petitioner/ vendee was also owner in the village, alongwith the same. Exh.D.1 was relied upon in the list. This document was admitted in evidence without any objection by the respondent/pre-emptor. The learned trial Court on consideration of the evidence produced in support of the sale by Muhammad Riaz in favour of the petitioner/vendee through Exh.D.1 came to the conclusion that the petitioner/, vendee had become, owner in the village. This finding, however, was reversed by the. Learned Appellate Court. The judgments being at variance, the evidence produced by the parties has been gone through with the assistance of the learned counsel for the parties.
6. The contention of the learned counsel for the respondent/pre-emptor that Exh.D.1 is a private document which could be prepared at any time, when considered in conjunction with the statement of Muhammad Riaz D.W.2 loses its efficacy. Muhammad Riaz had categorically owned the contents of Exh.D.1 and also that he had received the price and delivered the possession of the land to the petitioner/vendee. The suggestion that it was a sham transaction was categorically refuted by him, In this view of the matter when the parties to a transaction i,e, the vendor and the vendee are at-one as to the genuineness of the transaction the assertion/allegation to the contrary does not hold the ground. Exhibit D , 1 was not registered as it was not required by law to be registered.
7. The view taken by the learned Appellate Court that it was to be proved on the record that Muhammad Riaz was owner in the village is not supported by the facts and circumstances of the case. It was not the case of respondent/pre-emptor nor was any such question put to Muhammad Riaz D.W.2 disputing his ownership in the village. Similarly the Appellate Court was wrongly influenced by the provisions of M.L.R. 115 which had no application to the cases. The reliance of the learned counsel for respondent No,1 on Mst. Sardar Begum (supra) is not apt in the facts and circumstances of the case inasmuch as in the precedent case it was proved on the record that by purchasing non-agricultural property the vendee had not become owner in the estate. That is not the position in the present case.
8. In view of the factual and legal position obtaining in the matter the findings recorded and the view taken by the learned Additional District Judge, Sialkot is not supported by the evidence on record, as such, his judgment cannot be sustained.
' Resultantly, this civil revision is accepted. The judgment of the learned Additional District Judge, dated 1-6-1986 is set aside and that of the learned trial Court is restored. No order as to costs.