MIAN SAQIB NISAR, J. - The instant revision petition as also revision petition No. 556-D of 1985, involve almost identical questions of facts and law, thus, are being disposed of together.
2. Briefly stated the facts of the cases are, that the respondent filed two suits challenging two different transactions of sale with regard to the properties specified in the plaints situated in Mauza Thuh Bhullo, Tehsil and District Kasur, sold by his father, namely, Jamil Ahmad alongwith his 'brothers in favour of the petitioner. The petitioner contested the suits and stated that the respondent has not filed the suits with clean hands and the same are collusive in nature. It may he pertinent to state here that the respondent, namely, Kaamran Jamil, was a minor of 6/7 years of age at the relevant time and the suits were filed through Qamar Din as next friend.
3. In preliminary objection No. 2 of the written statement it was stated that the plaintiff is not a resident of the mauza, where the properties in dispute are situated and that Qamar Din could not act as his guardian/next friend. It was further stated that though Qamar Din had been shown to be the grand-father of the plaintiff, but he was not his real grandfather.
4. Issues were framed and the important for the disposal of the revision petitions is, whether the suits are incompetent in view of preliminary objections Nos. 1 and 2. The Trial Court by giving its findings on the superior right of pre-emption in favour of the respondent and by giving findings against him (respondent) on Issue No. 1 dismissed the suits on 23.10.1984, holding that the suits filed by the respondent were collusive. The respondent is rea! Son of Jamil Ahmad, vendor, was admittedly living at Karachi, was not residing with his next friend Qamar Din and was never in his custody etc. The respondent filed appeals and the findings of the Trial Court on the said issue were reversed by the Appellate Court on 2.3.1985, hence these revision petitions.
5. The learned counsel for the petitioner has forcefully argued that the Court in appeal has misread the evidence on record and the findings that the petitioner has failed to lead any evidence to establish the suits is result of collusion between respondent and his father is an erroneous conclusion drawn from the facts and circumstances of the cases.
6. As there is variance in the findings of facts by the Courts below, therefore, I have scanned the evidence on record myself. PW-1, Noor Muhammad, has admitted that the respondent is son of Jamil Ahmad, one of the vendors and that the name of Jamil Ahmad's father is Subedar Major Hassan Muhammad. This clearly shows that the respondent is not the grand-son of Qamar Din. In cross-examination this witness has stated that the age of the respondent/plaintiff is seven years and he resides at Karachi. PW-2 is A.I Muhammad, who has made statement more or less to the same effect. PW-3, Mian Khurshid Ahmad, has stated nothing special, except that the vendee after the purchase of the suit properties has not spent much on its improvement. PW-5, Qamar Din, next friend in the examination-in chief had admitted that Jamil Ahmad, father of the respondent is his nephew so he is not real grand-father of the respondent, so as to act as his legal and natural guardian in a situation as of the present cases. This witness nowhere has stated that the suits for pre-emption have been filed for the benefit of the respondent and would advance and promote his interest or would be beneficial for him. It is also not shown that his father has any interest advise to him. It is also not clear as to who was meeting the expense of the litigation and why, who is to pay the pre-.Emption/sale price and above all and why in the presence of the father and under what circumstance and for what reason, being not so closely related Qamar Din has taken up the task of filing the suits. In the cross-examination this witness has admitted that the petitioner/defendant is his elder brother and that the 'father of Jamil Ahmad, vendor is also his brother. It is also 'admitted that the respondent alongwith his father lives in Karachi and occasionally comes to the village during vacation.
7. Learned counsel for the petitioner in the light of the above has forcefully contended that the judgment reported as Naseer Ahmad Versus Arshad Ahmad (PLD 1984 S.C. 403) is squarely applicable to the facts and circumstances of the present cases.
Learned counsel for the respondent conversely has submitted that the suits been filed with honestly of purpose, bona fidely and for the best interest of the minor.
8. I am afraid that this is not, which could be validly and legally concluded on the basis of facts and circumstances of the present cases. It is very strange that the father sells the property alongwith his brothers and subsequently a distinct relation acting as a next friend of a minor child of 8/9 years, without disclosing or giving any cogent reason which necessitated to file suits for pre- emption and whether or not it is in the best interest of the minor, impugns the sales. In the circumstances of the cases, it was in facts for the respondent to have proved the bona fide and lack of conclusion.
9. The principle of law laid down in the judgment of Supreme Court is fully applicable to the instant matters and findings of the Court in appeal are contrary thereto.
10. In view of the above, these revision petitions are allowed, the judgments and decrees in appeal are set aside and that of the Trial Court are up-held.