CH. IJAZ AHMAD, J.- The brief facts out of which present revision petition arises are that petitioner No. 1 purchased the land in-question measuring 12 kanals, 10 marlas situated at Mauza Daulapukhta, Tehsil Deepalpur, District Okara for consideration of Rs. 23,500/-. Subsequently, he gifted the said land to his sons petitioners Nos. 2 to 4 by way of registered gift deed dated 30.1.1980.
The respondents being aggrieved filed a suit for pre-emption , against the petitioners before Civil Judge 1st Class, Deepalpur on 26.4.1980 on the ground that the respondents had superior rights on the basis of co-sharers, collateral and owners in the estate. The respondents filed written statement controverting the allegations levelled in the plaint. Out of pleading of the parties, the learned Trial Court framed the following issues:- Issues:
(i) Whether the suit is insufficiently stamped, if so, its effect? OPD 1 to 4.
(ii) Whether the plaintiff has no locus standi and cause of action to file the suit? OPD-1 to 4.
(Iii) Whether the plaintiff Muhammad Ameer is estopped to file the suit? OPD-1 to 4.
(iv) Whether the plaintiff has got superior right of preemption qua defendants Nos. 1 to 4? OPP (v)
Whether an amount of Rs. 55,600/- was fixed as sale price bona fidely and actually paid? OPD.
(vi) If issue No. 5 is not proved then what was the market value of the suit land?
(vii) Whether the suit of defendant No. 5 is collusive? OPP.
(viii) Whether defendant No. 5 was waived of his right of pre-emption? OPP.
(ix) Relief.
2. The learned Trial Court decreed the suit vide judgment and decree dated 13.10.1985. The petitioners being aggrieved filed an appeal before the learned Addl. District Judge, Deepalpur, who accepted the same vide judgment and decree dated 9.4.1986. The respondents being aggrieved filed before this Court which was accepted vide judgment dated 17.9.1986 and the case was remanded to the learned Addl. District Judge, Okara for fresh decision. The learned Addl. District Judge dismissed the appeal of the petitioners vide impugned judgment dated 23.2.1987. Hence, this revision petition.
3. The learned counsel of the petitioners submits that the first Appellate Court erred in law to decide the case against the petitioners qua collateralship of the plaintiffs as well as ownership in the estate. He further submits that the respondent/plaintiff in affirmative evidence did not prove the aforesaid contents of the plaint and issues in-question which were proved by the petitioner/defendant in rebuttal, which is not permissible in the eyes of law. In support of his contention, he relied upon the case of "Naseer Ahmad v. District Judge, Multan and 4 others" (PLD 1992 Lah. 92). He further submits that pedigree-table was produced by the learned counsel of the plaintiffs/respondents before the learned Trial Court without producing any corroborative evidence before the learned Trial Court, therefore, both the Courts below erred in law to rely upon pedigree- table and decided the case against the petitioners. In support of his contention, he relied upon the following judgments:-- " Rehman's v. Noor through his Legal Heirs" (1996 SGMR 300).
"Muhammad Hussain, etc. v. Muhammad Khan" (1989 SGMR 1026).
"Muhammad Naeem, etc. v. Ghulam Muhammad, etc" (1994 SCMR 559).
He further submits that at the time of sale, petitioner No. 1 was owner in the estate, therefore, first Appellate Court erred in law to dismiss the appeal of the petitioners merely on the ground that petitioners Nos. 2 to 4 were not owners in the estate. He further submits that the petitioners have filed a suit for pre-emption on the basis of sale in-question dated 30.4.1979 executed between petitioner No. 1 and Muhammad Ali. Petitioner No. 1 had alienated the land inquestion to his sons, petitioners Nos. 2 to 4 through registered gift deed, therefore, the first Appellate Court erred in law to decide the case against the petitioners. He further submits that was finally decided between the parties qua the second sale-deed between the original owner and petitioner No. 1, who gifted the said land also in favour of his sons and held that petitioners are also owners in the estate.
4. The learned counsel of respondents submits that both the Courts below have given concurrent findings against the petitioners and this civil revision is, therefore, liable to be dismissed. In support of his contention, he relied upon "Anwar Zaman and 5 others v. Bahadur Sher and others" (2000 SCMR 431) = (2000 CLR 757). He further submits that the judgment relied upon by the learned counsel of the petitioners qua point of affirmative evidence i.e. "Naseer Ahmad v. District Judge, Multan and 4 others" (PLD 1992 Lah. 92) is distinguished on facts and law as the petitioners did not challenge the order of first Appellate Court dated 26.11.1984. He further submits that the respondents did not agitate the documents produced by the respondents/plaintiffs in the shape of Ex.P-4 to Ex.P-7 qua the pedigree-table, in the first round of litigation, the petitioners filed an application before the first Appellate Court which was dismissed vide order dated 26.11.1984 by the said Court. He further submits that this fact was not agitated by the petitioners in the first round of litigation in C.R. 501/86. He further submits that the documents were produced before the learned Trial Court without opposition of the petitioners, therefore, the petitioners have no lawful authority to agitate the matter which has been finally concluded before the first Appellate Court in the earlier round of litigation, in support of his contention, he relied upon the following judgments:- "Abdullah v. Abdul Karim" (PLD 1968 S.C. 140).
"Mst. Zainab v. Mst. Balqees" (PL) 1991 S.C. I00).
"Abdul Ahmad, etc. v. Roshan Din, etc." (PLD 1979 S.C. 890).
"Nawab Raunaq Ali v. Chief Settlement" (PLD 1973 S.C 236).
He further submits that the petitioners/defendants admitted in their evidence that petitioners Nos.
2 to 4 were not owners in the estate, therefore, the petitioners/defendants cannot be wriggled out from the aforesaid admission on the well-known principle of estoppel as per principle laid down by the Hon'ble Supreme Court in "Abdul Ahmad and others v. Roshan Din and 36 others" (PLD 1979 S.C.
890). He further submits that judgments cited by the learned counsel of the petitioners between the parties qua also accepted the respondents/petitioners as owners of the property in dispute, therefore, in case, the respondents be not collateral of Muhammad Ali, then the respondents have rights to succeed on the basis of ownership qua the property in-question. He further submits that the documents speak whereas oral evidence does not speak. The oral evidence must be based on some tangible documents.
5. The learned counsel of the petitioners in rebuttal submits that in the earlier round of litigation only question involved that the learned Trial Court, excluded the documents Ex.P-4 to Ex.P-7 on the ground that the aforesaid documents were not certified copies of the documents. Subsequently, the certified -copies of the documents were produced, therefore, the case was remanded to the first Appellate Court to decide the case afresh after considering the documents and this Court did not evaluate the documents, therefore, that judgment is not final between the parties. He further submits that the petitioners produced three witnesses DW-1 Khalid Ahmad/petitioner No. 1 original purchaser, DW-2 Niaz Muhammad son of vendor, original owner and DW-3 Jan Muhammad, who categorically stated that respondents- plaintiffs have no relationship with original owner Muhammad Ali.
6. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
7. It is better and appropriate to reproduce the evidence of P.W.1, statement of his counsel, statement of D.W. 1, 2, 3, and statement of the plaintiff in rebuttal:-
6. In case the aforesaid evidence of the parties are put in juxta-position then it brings the case of the respondent/plaintiff that he did not mention a single word with regard to family or pedigree- table. This fact was not considered by the Courts below, therefore, judgments of both the Courts below are in violation of the law laid down by the superior Courts. The question of law has been decided by the Honourable Supreme Court in Rehman's case (supra) (1996 SCMR 300). The relevant observation is as follows:- "The respondent had sought to prove in the Trial Court his relationship with the vendors by producing the pedigree-table Exh.P.4 and P.5 through his counsel. However, no one had appeared in the witness-box either to testify to the correctness of the pedigree-tables or to depose that they had a nexus with the respondent. The respondent while appearing before the learned Trial judge simply asserted that he was "Yakjaddi" of the venders. In his cross-examination, however, he was unable "to recite his pedigree-table" so as to prove his relationship with the vendors.
This Court in the two precedents cited by the learned counsel for the appellant had held that in the absence of any affirmative evidence on the relationship of pre-emptor with the vendors, the pedigree-table, by itself, could not prove the factum of relationship of the former with the latter."
7. I am also fortified by the law laid down by the Honourable Supreme Court in Muhammad Hussain's case (supra) (1989 SCMR 1026) and Muhammad Naeem's case (supra) (1994 SCMR 559). It appears that the petitioners purchased another piece of land from the original owner. The respondent filed a suit for pre-emption on the ground that petitioner/defendant was collateral of vendor and owner in the Khata which was dismissed by the learned Trial Court and finally Revision was also dismissed by this Court vide judgment dated 25.3.1987. The contention of the learned counsel of the respondent that both the Courts below have concurrently decided the case against the petitioner, therefore, the revision petition is not maintainable and this Court has no jurisdiction, has no force in view of the law laid down by the Honourable Supreme Court in Muhammad Akhtar v. Mst. Manna and 3 others (2001 SCMR 1700). The relevant observation is as under:- " Different view on re-appraisal of evidence, could not be a ground for interference with such findings of fact of the two Courts below in exercise of jurisdiction under Section 115, C.P.C, by High Court, "(2000 SCMR 431). But the concurrent findings as derived by learned Trial and Appellate Courts are not in accordance with law and it appears that the evidence was never examined properly before deriving the concurrent findings. We are of the considered opinion that if the concurrent findings are perverse, arbitrary or fanciful, the same cannot be terms as ' sacrosanct' and can be interfered with, in this regard, reference can be made to 2000 SCMR 974 at 986 where in it was observed as follows:- "It is trite law that if the concurrent findings of the Courts below are the result of misreading of evidence on record, it becomes the duty of the High Court/revision forum to set the wrong right in accord with its jurisdiction under Section 115, C.P.C."
8. It is also admitted fact that respondent fled a suit for pre-emption on the basis of purchase of land in question by respondent No. 1 from original owner, Muhammad Ali on 30.4.1979 and had gifted the same to his sons before expiry of one year through gift deed dated 30.1.1980. The petitioner No. 1 is a co-sharer in the Khata at the time of the purchase of the land in question. This fact brings the case in the area that both the Courts below have given concurrent findings of facts against the petitioners by misreading and non- reading of the record in violation of the law laid down between the parties qua the other land in , dated 25.3.1987. The judgments cited by the learned counsel of the respondent are distinguished on facts and law. The documents in question were not properly scrutinized by the Courts below in terms of the law laid down by the Honourable Supreme Court in the aforesaid judgments. The judgments of both the Courts below are in violation of the law laid down by the Superior Courts in the aforesaid judgments. This concept of jurisdiction and illegality had been considered by the Honourable Supreme Court in Kanwal Nain's case (PLD 1983 S.C. 53) to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse with grave injustice would result therefrom. Both the Courts below have committed material irregularity. This Court has ample jurisdiction to disturb the findings of facts in such situation as per principle laid down by the Honourable Supreme Court in Shaukat Nawaz's case (1988 SCMR 851).
In view of what has been discussed above, this revision petition is accepted with no order as to costs. Resultantly, judgment of both the Courts below are set aside and the suit of the respondent/plaintiff is dismissed.