2018 PLP 102 (CLCN)

ALI BAIG, J.

This civil revision petition has been directed against the impugned judgment/decree dated 08-5-2017 passed by the learned District Judge Ghizar, whereby the learned 1st Appellate Court has allowed the appeal of the present respondent/plaintiff by setting aside the impugned judgment/decree dated 31-5-2014 passed by the learned trial court and the suit of the present respondent /plaintiff has been decreed in his favour.

2. Brief facts of the case leading to filing of this revision petition are that the plaintiff/respondent herein instituted a suit for possession of disputed land fully described in the head note of the plaint situated at village Sherqillah Teshil Punial District Ghizar through pre-emption which was clandestinely sold out to the petitioner/defendant No.1 by the petitioners/defendants Nos.2 and 3 for sale consideration of Rs.700,

000. The respondents/plaintiff has pleaded in the plaint that since the suit land was owned by his brother namely Habib Khan and on his death the suit land was devolved to the petitioner/defendant No.2 namely Mst. Remat Begum who was sole legal heir of his deceased brother. The plaintiff/respondent being co-sharer in the suit property had superior right to purchase the suit land.

3. The present petitioners being defendants in the suit contested the suit by way of filing their joint written statement in the trial court wherein they have raised certain legal objections and on facts the averments made in the plaint were also repudiated by the petitioners/defendants in their written statement.

4. Out of divergent pleading of the parties the learned trial court has framed the following 9 issues:-

1. Whether plaintiff being co-sharer has prior right of purchase of the suit land as compared to defendant No.1? OPP

2. Whether defendants have through conspiracy and collusion inter-se shown sale price of the suit land and plaintiff is entitled to get possession of the suit land after payment of market value i.e. Rs.700,000/-? OPP

3. Whether plaintiff has cause of action against the defendant? OPP

4. Whether the suit is time barred? OPD

5. Whether defendants Nos.2 to 4 had prior to the sale of the land under pre-emption informed the plaintiff and others adjacent land owners to purchase suit land which was refused by the plaintiff? OPD

6. Whether due to refusal of plaintiff to purchase the land under pre-emption defendant No.1 has purchased the land for Rs.870,000/- and since then defendant No.1 is in possession of the land? OPD

7. Whether some parts of the land under pre emption have been sold to other people about two and half years back and plaintiff has not raised any objection to said sales? OPD

8. Whether plaintiff was offered by defendants to purchase the land under pre-emption for Rs.700,000/- which offer was not accepted by the plaintiff? OPD

9. Relief.

5. After framing of the above mentioned issues, the learned trial court directed the parties to produce their evidence as they wished to adduce. Accordingly, the present respondent/plaintiff produced two oral witnesses namely Mr. Saleem Khan and Hajat Wali besides recording of his own statement in the trial court. Likewise the present petitioners/defendants have also produced four witnesses namely Haji Khan, Sher Azam Khan, Bulbul Khan and Amin Muhammad besides recording of their statement through their attorney namely Haji Karim in the trial Court. The present respondent/plaintiff has also produced two witnesses in rebuttal in the trial court.

6. On conclusion of trial the learned trial court after hearing arguments on behalf of both the parties has dismissed the suit of present plaintiff/respondent with compensatory cost of Rs.30,000/- vide judgment dated 31-5-2014.

7. Feeling aggrieved by the aforementioned judgment/decree of the trial court, the present respondent had filed a civil 1st appeal in the court of the learned District Judge Ghizar and the learned 1st Appellate Court after hearing arguments of counsel for the parties has allowed the appeal of the appellant/plaintiff vide the impugned judgment/decree dated 08-5-2017 and suit was decreed in favour of present petitioner/plaintiff, hence this revision petition.

8. The learned counsel appearing on behalf of the petitioners/defendants contended that the impugned judgment/decree passed by the learned 1st Appellate Court is contrary to law and facts on the record of the case as such the impugned judgment/decree passed by the learned trial court is not maintainable and liable to be set aside. The learned counsel for the petitioner further argued that pedigree has not been filed by the respondent/plaintiff along with his plaint and the plaintiff/respondent was not willing to purchase the suit land, therefore, the suit land was sold out to the petitioner/defendant No.1 by petitioners/defendants Nos.2 and

3. The learned counsel for petitioners further argued that a piece of land out of suit land was already sold out by the petitioners Nos.2 and 3 to some other persons but the respondent/plaintiff did not lodged any objection, thus the respondent/plaintiff is estopped by his conduct and admission to institute the suit against the present petitioner. The learned counsel for the petitioners further argued that the 1st Appellate Court lacks pecuniary jurisdiction to entertain the appeal as per issue No.2 value of suit has been fixed as Rs.700,000/-. The learned counsel for the petitioners further argued that the respondent/plaintiff had filed a suit in the trial court challenging the gift deed Exh-D/2 which was dismissed by the learned trial court. Concluding his argument, the learned counsel for the petitioners contended that since the suit property has been gifted to petitioner No.3 by the petitioner No.2 vide gift deed Exh-D/2 and the respondent/plaintiff has no relationship with the petitioner No.3, therefore, the suit of the plaintiff/respondent was not maintainable and the learned 1st Appellate Court has wrongly decreed the suit in favour of the respondent.

9. On the other hand the learned counsel appearing on behalf of the respondent/plaintiff controverted the arguments advanced by the learned counsel for the petitioners by contending that since the petitioner No.2 is real daughter of brother of present respondent and the suit land was devolved to the petitioner No.2 after death of her father namely Habib Khan, therefore, the respondent being co-sharer had superior right to purchase the suit land, thus, the learned 1st Appellate Court has rightly decreed the suit of respondent/plaintiff in his favour. The learned counsel for the respondent further argued that admittedly the father of the petitioner No.2 and respondent are brothers inter-se, as admitted by the attorney of the petitioners/defendants in his cross examination, hence, pedigree is not required to be attached with plaint and respondent had superior right to purchase the suit property. Concluding his arguments the learned counsel for the respondent argued that since the learned 1st Appellate Court has rightly decreed the suit in favour of the respondent/plaintiff' in the light of evidence adduced by the parties in the trial court which may be maintained in the interest of justice.

10. I have given my due consideration to the arguments addressed at bar and gone through the record with utmost care.

11. From perusal of the record it transpires that the plaintiff/respondent has filed suit for possession of disputed land through pre-emption on the ground that since the suit property is part of his ancestral property which was inherited by the father of petitioner No.2 namely Habib Khan who was brother of present respondent/plaintiff. On the death of above named deceased namely Habib Khan the disputed property was devolved to the petitioner No.2 being sole legal heir of her father late Babar Khan. The petitioner No.2 had contracted marriage with the petitioner No.3 namely Amor Baig who has clandestinely sold out the suit land to the petitioner/defendant No.1 namely Durdana Khan whereas the plaintiff/respondent herein being co-sharer had prior right to purchase the suit land because the purchaser/petitioner No.1 namely Durdana Khan was stranger. The petitioners vide their joint written statement have denied the relationship between father of the present petitioner No.2 and the plaintiff/respondent. The defendants Nos.2 to 4 have also averred in the written statement that prior to sale of suit property to petitioner/defendant No.1, the petitioners/ defendants Nos. 2 to 4 had informed/asked the plaintiff/respondent to purchase the suit land but the respondent/plaintiff had refused to purchase the suit property. But the above stated fact could not be proved by the petitioners/ defendants by adducing reliable evidence in the trial court.

12. Admittedly the plaintiff/respondent is step brother of father of present petitioner No.2 as admitted by the attorney of the defendants/petitioners in his cross examination as such the plaintiff/respondent is co-sharer in the disputed property and has prior right to purchase the suit property, in accordance with the relevant provisions of Gilgit Sub-Division Right of Prior Purchase Regulation 1938. The suit property was also common property of the plaintiff/respondent and father of petitioner/respondent No.2 which was got by the father of petitioner No.2 by way of family partition and the suit property is also situated adjacent to the land of the plaintiff/respondent, whereas, the petitioner/defendant is stranger and he is resident of Drani and his lands are not situated adjacent to the disputed land as admitted by the attorney of the defendant in his cross-examination that no land of the petitioner/defendant No.1 is situated adjacent to the disputed property rather land of the petitioner No.1 is situated at Darni/some other village.

13. From perusal of evidence adduced by the parties it reveals that the plaintiff/respondent had proved his case/claim by adducing reliable evidence in the learned trial court, the learned trial court has failed to appreciate the evidence adduced by the plaintiff/respondent and the judgment/decree passed by the leaned trial court is a result of non-reading and misreading of evidence of the parties. On the other hand the learned 1st Appellate Court has arrived at just conclusion and has rightly decreed the suit of the plaintiff/respondent in his favour.

14. In view of above position, it is clear that the evidence tendered by the parties was duly considered and on the basis of thereof the learned 1st Appellate Court has reached to the just and fair conclusion and has rightly decreed the suit in favour of the respondent/plaintiff. Hence, in the facts and circumstances of the case, there is neither any legal error floating on the surface of the impugned judgment nor the learned Ist Appellate Court has failed to take into consideration any material evidence adduced by the parties particularly the petitioners/defendants.

15. In view of above, the instant civil revision petition is without merit and is accordingly dismissed. Consequently, the impugned judgment/decree passed by the learned 1st Appellate Court dated 08-5-2017 is maintained. File. SA/175/GB Revision dismissed.