2015 PLP 621 (MLD)

MUNIR AHMED CHAUDHARY, J.

This appeal has been directed against the judgment and decree of District Judge Mirpur dated 8-12-2005, through which the judgment and decree passed by the Civil Judge Mirpur dated 26-2-2005 was maintained.

2. Brief facts culminating into the present appeal are that one Mirza Begum (defendant No.2 in the suit) transferred the land measuring 1 Kanal and 16 Marlas bearing survey No.245 Khata No. 128/531 Khewat No. 3 situated at village Azizpur Tehsil Mirpur to the present appellant/defendant No. 1 through a gift-deed on 31-5-1993. The present respondents Muhammad Azam and Abdul Wahid filed a suit for pre-emption on the ground that the said gift-deed was in fact a sale-deed and the transaction was made in shape of a gift-deed only to defeat the right of prior purchase of the respondents/plaintiffs. It was also stated that the suit land was sold against a price of Rs. 50,

000. The donor and the donee have no relationship with each other and the transaction was made malafidely. The present appellant/donee submitted written statement and denied the claim of the plaintiffs. The present pro forma respondent Raja Muhammad Ayub Khan also filed a counter suit for declaration and cancellation of the said gift-deed, stating therein that it was made regarding the undivided land, without possession and legal justification. The opposite party submitted written statement. Both the suits were consolidated and the parties were provided an opportunity for leading evidence in support of their claims. After hearing the parties, the learned Civil Judge Mirpur decreed the suit on 26-2-2005 filed by the present respondents/plaintiffs Muhammad Azam and another and dismissed the counter suit being without proof. Feeling aggrieved, the present appellant preferred an appeal before District Judge Mirpur on 6-4-2005. After hearing the parties, the learned District Judge Mirpur dismissed the first appeal vide his judgment dated 8-12-2005. The appellant has filed the instant second appeal before this court.

3. Arguments were advanced by the learned counsel for the parties. Mr. Muhammad Ayub Sabir Advocate, the learned counsel for the appellant argued that there was no sufficient evidence on the record to show that the gift-deed was executed in order to defeat the right of prior purchase of the plaintiffs (the present real respondents). The subordinate courts did not record their findings in accordance with the evidence placed on record. Both the courts erroneously held that the gift-deed was in fact a sale-deed and was executed against a price of Rs.50,

000. The courts below misread the evidence and the record. The learned counsel requested to accept the appeal and referred the following precedents in support of his arguments. 1993 CLC 1084, 2000 MLD 1813 and 2002 CLC 1121.

4. While controverting the learned counsel for the appellant, Mr. Muhammad Farooq Minhas Advocate, the learned counsel for the real respondents contended that both the subordinate courts have recorded their findings concurrently in accordance with the evidence and provisions of law. The present appellant/vendee has no relationship with the vendor (Jan Begum) and the gift- deed was made only to defeat the right of prior purchase and it was done malafidely. The learned counsel further argued that both the subordinate courts have recorded their findings based on reliable evidence and with sound and cogent reasons, which cannot be interfered mere on the ground that the evidence has not been appreciated properly. The learned counsel requested to dismiss the instant appeal.

5. After hearing the arguments, I have gone through the record and perused the precedents referred in the light of evidence on record carefully and minutely. The record reveals that the pre-emptors took this version that the gift-deed was in fact a sale-deed and it was executed only to defeat the right of prior purchase of the plaintiffs. It is amazing that the present appellant/defendant has not denied the said claim of the plaintiffs/the present real respondents. The written statement submitted by the present appellant is of evasive nature. It is an admitted principle of law that the denial of any fact through an evasive nature is sufficient to treat it as an admission on behalf of the defendant regarding the said fact. Both the subordinate courts have recorded their findings based on sound and cogent reasons and have rightly relied upon the evidence placed on record. It is also an admitted principle of law that in such like cases direct evidence is not always available. The evidence brought on the record and the conduct of the parties is always relevant. The subordinate courts have rightly relied upon the record, conduct and intention of the parties. Moreover, nothing has been brought into notice of the court that any material evidence or portion of any evidence was misread by the courts below. Having in view the above-mentioned circumstances, no indulgence is required into the findings recorded by both the subordinate courts. The instant appeal stands dismissed with no order as to the costs. AG/50/HC(AJ&K) Appeal dismissed.