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Petitioner: BARKAT ALI VS Respondent: KHURSHID BIBI
1988 S C M R 1550
1988 S C M R 1550
Present: Muhammad Afzal Zullah and Saad Saood Jan, JJ
BARKAT ALI‑‑Petitioner
versus
KHURSHID BIBI and others‑‑Respondents
Civil Petition No. 154 of 1985, decided on 31st May, 1988.
(Against the judgment and order of the Lahore High Court, Lahore, dated 9‑12‑1984 in R.S.A. No.148 of 1981).
(a) Punjab Pre‑emption Act (I of 1913)‑‑
‑‑‑S.15‑‑Civil Procedure Code (V of 1908), 5.100‑‑Constitution of Pakistan (1973), Art.185(3)‑‑Right of pre‑emption‑‑Findings of fact‑ Interference with‑‑Plea raised that respondent had failed to establish a superior right of pre‑emption because question of fact regarding relationship between vendor and pre‑emptor was wrongly decided‑ Question having concluded by findings of fact, leave to appeal refused.
(b) Punjab Pre‑emption Act (I of 1913)‑‑
‑‑‑S.15‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Right of pre emption‑‑Waiver of‑‑Proof for‑‑ Vendee‑petitioner raising plea that pre‑emptor's suit suffered from bar of waiver‑‑Oral evidence not considered enough to create bar of waiver against respondents‑‑Leave to appeal refused.
(c) Constitution of Pakistan (1973)‑‑
‑‑‑Art.185(3)‑‑Leave to appeal, grant of‑‑Misreading of record‑‑Leave to appeal sought on ground that High Court had misread judgment of Trial Court regarding form of issue‑‑Question raised being too technical and without substance, leave to appeal refused.
Anwar Sipra for Petitioner.
Memo for Respondents.
Date of hearing: 31st May, 1988.
JUDGMENT
MUHAMMAD AFZAL ZULLAH, J.‑‑This is vendee's petition in a pre‑emption matter. His Regular Second Appeal against the reversal of the trial Court's judgment by the first appellate Court, was dismissed.
The plea raised by the learned counsel is two‑fold; one, that the respondents' side failed to establish a superior right of pre‑emption because the question of fact regarding relationship between the vendor and the pre‑emptor has wrongly been decided arid further that the pre‑emptor 's suit suffered from the bar of waiver.
The second point raised by the learned counsel was not pressed before the learned appeal Court. Be that as it may, the reliance is only on oral evidence which we have not been able to treat enough, to create bar of waiver against the respondents.
Regarding the first point it would suffice to observe that Munshi Khan, tire father of the pre‑emptor supported her case. In any case, this question also stands concluded by the findings of~ fact.
The other point raised by the learned counsel is that the High Court misread the judgment of the learned trial Court regarding the form of issue, the question now being raised besides being too technical, is without any substance. Leave to appeal accordingly is refused.
M.I./B‑60/S Petition dismissed.