' MUHAMMAD YUNUS SURKHAVI, J.---The above titled review petition has been preferred by Muhammad Said Khan and others seeking reversal of our judgment in Civil Appeal No,143 of 1999 titled Muhammad Said Khan and others v. Abdul Qayyum Khan passed on 12-5-2000, whereby the appeal filed by the petitioners, herein, was dismissed and the appeal of respondent Abdul Qayyum Khan was partly accepted and a further decree of pre-emption to the extent of land measuring 2 Kanals, 19 Marlas, comprising Survey No,24, Khewat No,124, Khata No,423, situate in village Tahlian, Tehsil Sudhnooti, on the basis of contiguity of his land with the vendors on payment of proportionate amount of consideration was granted.
2. Another application has been moved by Abdul Qayyum Khan, respondent herein, under Order XLIII, rules 4 and 5 of the AJ&K Supreme Court Rules read with section 42(A) of the AJ&K Interin Constitution Act, 1974, with a prayer that he is entitled to a decree of pre-emption in respect of whole of Khasra No,26, measuring 7 Karlals, 12 Marlas, on the basis of contiguity.
3. In support of review petition Mr.Imdad Ali Mallick, the learned counsel for the petitioners, contended that the respondent Abdul Qayyum Khan did not produce any documentary evidence in support of his claim of the contiguity of his land with the land of vendors. The burden of proving this issue was on plaintiff-respondent but he failed to discharge the same. This Court while passing the decree of pre-emption in favour of plaintiff-respondent relied upon a document Exh."DL" which was produced by the petitioners before the trial Court. Thus according to the learned counsel the plaintiff-respondent having not discharged the onus of proof could not be given the benefit of the weaknesses of the case of defendants. The learned counsel in support of his contention relied on Articles 117 to 119 of the Qanun-eShahadat and contended that the burden of proof lies upon a person who alleges the existence of a fact or on a per son who would fail if no evidence at all were given on either side. In order to elaborate his view-point the learned counsel contended that had this Court not relied on document Exh."DL" which was produced by the petitioners, the plaintiff- respondent was bound to fail. Similarly if no evidence at all was given on either side the plaintiff was likely. To fail. The learned counsel for the petitioners in support of his above contention relied on Hafiz-ul-Haq v. Haji Abdul Mastan (PLD 1994 Peshawar 235) and Amirullah v. Surat Ali and 17 others (PLD 1991 Peshawar 29), wherein it was observed that plaintiff must succeed on the strength of his own case and not on the weakness of defendant's case. It was thus observed that the rule of "secundum allegata et probata" shall have no application in the circumstances. The learned counsel further contended that entire Survey No,25 out of Khewat No,47, had not been sold but only the shares of vendors out of said Khasra number had been alienated, but the decree has wrongly been passed with regard to the entire share of vendors in the whole Khewat No,47 instead of Survey No,25. The learned counsel pressed into service the submission that the above-referred point also furnishes a valid ground for reviewing the judgment of this Court.
4. In the application moved under Order XLIII, rules 4 and 5 of the AJ&K Supreme Court Rules read with section 42(A) of the AJ&K Interim Constitution Act, 1974, Abdul Qayyum Khan has prayed that he is entitled to a decree of pre-emption in respect of whole of Khasra No,26, measuring 7 Kanals, 12 Marlas on the basis of contiguity.
5. We have given our due consideration to the arguments advanced by the learned counsel for the parties and perused the relevant record. In the first instance we may deal with the review petition filed by the petitioners. In the judgment under review it was observed in para. No,15 as follows:-- "As stated earlier, the plaintiff-respondent based his claim of superior right not only on the basis of his being a co-sharer along with the vendors but also on the ground that his land was contiguous to the land sold by the vendors, therefore, he had a preferential right on that score, but the High Court did not advert to the point as to whether he respondent-pre-emptor was entitled to a decree on the basis of contiguity of his land with the vendors. This plea was specifically raised in the plaint and was argued vehemently by the learned counsel for respondent Abdul Qayyum Khan that the High Court failed to attend to this point. According to the entries in Misl-e-Haqiat 1981-82, Khasra N.20, measuring 2 Kanals, 9 Marlas, Khewat No,47 of village Tahlian, Tehsil Sudhnooti, is shown in exclusive possession of Dewan Khan, father of pre-emptor Abdul Qayyum Khan, as a co-sharer. He is also entered in the column of ownership as an owner of this land to the extent of 2/3rd share. This Khasra number, according to the attested copy of Aks-Latha Exh.D.L. Is contiguous to the land sold by the vendors from Khasra Nos.24 and 25. Therefore, the respondent in our view has a prior right of purchase of Khasra No,24, measuring 2 Kanals and 19 Marlas on the basis of contiguity of his land situated in Khasra No,20 as compared to the vendee-appellant Muhammad Said Khan. The contention raised by the learned counsel for the appellants Syed Mushtaq Hussain Gilani that the vendee's own land is also contiguous to the land sold -by the vendors, therefore his right being equal or superior to the pre-emptor, a decree for pre-emption could not have been passed in favour of respondent on the basis of contiguity merits no consideration for the simple reason that vendee-appellant never raised a plea in his written statement that his right was equal to the pre- emptor on the basis of contiguity. By now it remains settled that a plea which has not been raised in the reading the evidence in respect of that cannot be looked into."
' At the end of this para. It was further observed as under:-- "There in our view respondent-preemptor is also entitled to a decree for pre-emption in respect of suit land measuring 2 Kanals, 19 Marlas situate in Khasra No,24, comprising Khewat No,124, Khata No,423/435, on the payment of proportionate consideration amount. It is indeed correct that Muhammad Nawaz Khan, the attorney for plaintiff-respondent did not say anything in his statement with regard to the contiguity of the land of the respondent-pre-emptor with the vendors but we cannot overlook the documentary evidence as well as the evidence of his two witnesses Muhammad Fazal and Khaliq Dad who are unanimous on the point that the land of respondent- pre-emptor was contiguous to the land sold by the vendors."
' Therefore, the contention raised by the learned counsel for the petitioners merits no consideration that merely on the basis of Exh.DL a further decree on the basis of contiguity of the land was passed in favour of Abdul Qayyum Khan. It may also be clarified that unlike a criminal case in a civil case a plaintiff is not supposed to prove his case beyond any reasonable shadow of doubt but the Court of law is expected to decide a dispute on the basis of preponderance of evidence.
Furthermore when the evidence of both the parties is brought on record, the question of burden of proof becomes immaterial. Therefore, the contention raised by the learned counsel for the petitioners is hereby repelled.
6. So far as the contention that the entire Survey No,25, out of Khewat No,47 had not been sold but only the shares of vendors out of said Kliasra number had been alienated which comes to the extent of 3 Kanals, 7 Marlas, and 6 Sarsahis, but the decree has wrongly been passed with regard to the entire share of vendors in whole Khewat No,47, is concerned, that is also devoid of any fore for the reasons that the total land sold by the vendors is 24 Kanals, 3 Marlas and the entries in the sale-deed show that 10 kanals, 3 marlas of land was sold out of Khewat No,47, Khasra No,309/2 (old), 25 (present), whereas 14 Kanals of land was sold from Khewat No,124, Old Survey Nos.310/4, 310/4 and 310/4, presently Survey Nos.24, 26 and 27. If the contention of the learned counsel for the petitioners is accepted as correct that only 3 Kanals and 1 Marla of land was sold from old Survey No,309/2 then the total acreage of land sold should not have been 24 Kanals and 3 Marlas. Even in the plaint filed by Muhammad Said Khan in para No,1 it was specifically averred at 24 Kanals and 3 Marlas of land was sold by vendors vide the sale-deed, dated 20-7-1994 in favour of vendee. This averment of para. No,1 as alleged in the plaint was not controverted by defendant Muhammad Said Khan as in his written statement this para of plaint has been admitted by him as correct. So in view of the pleadings of the parties, by no stretch of imagination, it could have been said that out of Survey No,25 only 3 Kanals and 1 Marla of land was alienated. Furthermore we have dealt with the above point in para. No,12 of our judgment under review in a following manner:--- "The land measuring 10 Kanals and 3 Marlas, comprising Khewat No,47, Khata No,175/3, Survey No,309/2 (old), 25 (new), was transferred while land measuring 14 Kanals, Khewat No,124 was alienated throught the sale-deed. Preemptor Abdul Qayyum Khan is legal heir of Dewan Khan while vendors Khadim Hussain and others are legal representatives of Din Muhammad, Dewan Khan and Din Muhammad are entered as owners of the land under Survey No,309/2 (old), new No,25, in Khewat No,47. Therefore, as observed by the High Court the right of plaintiff-pre-emptor with regard to the land measuring 10 Kanlas, 3 Marlas, comprising Survey No,25 (new) is established and a decree for pre-emption to the above extent was rightly granted in his favour by the High Court. The contention raised by the learned counsel for the appellants in the counter appeal, Mr. Imdad Ali Mallick, that the vendors were entitled only to the extent of 1/3rd to alienate the land but they transferred the whole land in excess of their share from Khasra No,25, Khewat No,47, has no substance. The aforesaid Khasra No,25 is entered in the exclusive possession of Dewan Khan co- sharer, the father of plaintiff-pre-emptor Abdul. Qayyum Khan, and is within the overall share of Dewan Khan in Khewat No,47. Thus, the vendor was competent to alienate the whole land which was in his exclusive possession provided the same did not exceed his overall share in the Khewat.
Thus there was no illegality on the part of Dewan Khan to alienate the whole land from said Khasra number."
' In view of the clear-cut observation we are afraid that in a review petition we cannot reopen the case.
7. In the light of what has .Been stated above, the review petition filed by Muhammad Said Khan and others having no force in it, stands dismissed.
8. So far as the application moved by Abdul Qayyum Khan under Order XLIII, rules 4 and 5 of the AJ&K Supreme Court Rules read with section 42(A) of the AJ&K Interim Constitution Act, 1974, is concerned, it has been prayed that he be granted decree of pre-emption in respect of whole Khasra No,26, measuring 7 Kanals, 12 Marlas on the basis of contiguity of his land, also merits no consideration for the simple reason that he has failed to file a review petition against the judgment and decree passed by this Court on 10-10-2000. The powers available to the Cowl under Order XLIII, rules 4 and 5 of the AJ&K Supreme Court Rules are not to be exercised in a routine but the same are available to the Court to do complete justice between the parties. The claim of Abdul Qayyum Khan is that he is entitled to a decree of pre-emption in respect of whole of Khasra No,26, measuring 7 Kanals, 12 Marlas on the basis of contiguity, which is not even supported by the document Exh.DL relied upon by him. This Khasra number, as claimed by Abdul Qayyum Khan, is not contiguous to the land of vendors. Therefore the above application filed by Abdul Qayyum Khan also stands dismissed.