2018 PLP 2552 (YLR)

ALI BAIG, J.

Through this civil first appeal the appellant has called in question the impugned judgment/decree dated 10-12-2014 passed by the learned Senior Civil Judge Gilgit whereby the learned trial Court has dimsised the suit of present appellant/plaintiff.

2. Succinctly facts of the case giving rise to the filing of this appeal are that the present appellant/plaintiff instituted a suit for possession through pre-emption against the present respondents/defendants in the trial court claiming that the respondent/ defendant No.2 has sold suit land measuring one kanal 4 marlas under khasra No.1736/1489/884 khawat No.490/515 mutation No.947 situated at Barmas Gilgit to respondent/defendant No.1 who is stranger whereas the house of the present appellant/plaintiff is situated adjacent/ contiguous to the disputed land, therefore, present appellant/plaintiff has prior right to purchase the suit land.

3. The present respondents being defendants in the suit contested the suit by way of filing of their separate written statements in the trial court, wherein they have raised certain legal objections and they have also repudiated the averments made in the plaint by asserting/pleading that suit land is not situated adjacent to the land of the present appellant.

4. Any how, out of divergent pleadings of the parties the learned trial court framed as many as 8 issues. Thereafter, to parties led their respective evidence in the trial court and on conclusion of trial the learned trial court decreed the suit in favour of the appellant/plaintiff which was challenged in the court of District Judge Gilgit through civil first appeal which was allowed and suit of the plaintiff/appellant was dismissed. The appellant/plaintiff challenged the aforesaid judgment/decree of the learned Ist Appellate Court through civil second appeal in this court. This court vide judgment dated 29-8-2013 has set aside both the judgments of both the learned lower courts and remanded the case to the trial court with the direction to ask the plaintiff for making necessary amendments in his plaint particularly regarding valuation of the suit for purpose of court fee. It was further directed to the leaned trial court to afford opportunity to the respondents to file reply to such amendments through their fresh written statement and then to frame additional issues in the light of so amended pleadings of the parties.

5. After remand of the case the learned trial court allowed the appellant/ plaintiff for amendment in the plaint. The learned trial court framed additional (4) four issues in the light of amended pleadings of the parties.

6. From the perusal of record it reveals that both the parties have not adduced fresh evidence after amendment in the plaint and framing of additional issues rather they have relied upon the evidence which was adduced by them earlier. After hearing arguments of counsel for the parties the learned Senior Civil Judge Gilgit vide impugned Judgment/decree dated 10-12-2014 has dismissed the suit of the present appellant/ plaintiff, hence this civil 1st appeal.

7. The learned counsel appearing on behalf of the appellant contended that the impugned judgment/decree passed by the learned trial 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 set aside. The learned counsel for the appellant further argued that the trial court has dismissed the suit of the appellant/plaintiff on the basis of section 249(2) of the Muhammad Law holding that Shia law/Fiqa-e-Jafria does not recognize the right of pre-emption on the ground of vicinage, or on the ground of the participation in the appendages but the aforesaid provisions of Muhammad Law does not attract to the case of the appellant as the suit was filed under the relevant provisions of the Gilgit Sub-Division Right of Prior Purchase Regularization 1938. The learned counsel for the appellant further argued that the learned trial court has failed to apply its judicious thought while passing the impugned judgment/decree, hence the impugned judgment/decree passed by the learned trial court is liable to be set aside.

8. In support of his contention the learned counsel for the appellant/plaintiff has relied upon the judgment titled Muhammad Ramzan and others v. Mst. Hawa passed by this court in Civil Revision Petition No.79/2013 and judgment titled Hussain and others v. Syed Muhammad Ali Shah passed by the Hon'ble Supreme Appellate Court in C.P.L.A. No.52/14.

9. On the other hand the learned counsel for the respondents supported the impugned judgment passed by the learned trial court by contending that since both the parties are Shia's and followers of Fiqa-e-Jafaria and under section 249(2) of the Shia Muslim Personal Law does not recognize the right of pre-emption on the ground of vicinage or on the ground of participation in the appendages therefore, the learned trial court has rightly dismissed the suit of appellant/ plaintiff and judgment/decree passed by the learned trial court may be maintained in the interest of justice.

10. We have given our anxious consideration to the arguments advance by the counsel for the parties and perused the record with their able assistance.

11. From perusal of the record it transpires that although the learned trial court has decided the matter on merits, after framing of issues and recording its findings on each and every issue and the suit has been decided on the basis of additional issues numbers 2 and 3 which are reproduced is under:--

12. Admittedly both the parties are followers of Fiqa-e-Jaferia and defendant No.1 in his written statement averred that since both the parties are follower of Fiqa-e-Jaferia, therefore, the appellant/plaintiff can be claimed his prior right for purchase of suit property on the ground of vicinage and participation in the appendages. Accordingly the pre-emption suit filed by the plaintiff/appellant is not maintainable and liable to be rejected under Order VII Rule 11, C.P.C. Thus the learned trial court has rightly framed the above mentioned two additional issues i.e. additional issues numbers 2 and 3.

13. In this connection we would like to reproduce the contents of section 249 of Mohammadan law as under:-- 249- Points of difference between Sunni and Shia law of pre-emption.

(1) According to the Shia law, no right of pre-emption exists in the case of property owned by more than two co-sharers. (2) The Shia law does not recognize the right of pre-emption on the ground of the vicinage (a), or on the ground of " participation in the appendages."

14. From bare reading of contents of aforesaid provisions of Mohammedan law it transpires that Shia Muslim personal law does not recognize the pre-emption right on the ground of vicinage or participation in the appendages of suit property i.e. Shafi Khalit and Shafi Jar in contemplation of section 249(2) of Mohammedan law. Admittedly neither the appellant/plaintiff is co-sharer in the disputed property nor has he has any blood relation with the respondent/defendant No.2 and thus appellant/ plaintiff cannot claim his superior right over the suit land on the ground contiguity/vicinage of suit land. The learned counsel for appellant has not been able to point out any mis-reading or non- reading of evidence recorded by the trial court. However the learned counsel for the appellant has referred case laws. The case laws relied upon by the learned counsel for the appellant are out of context because these are not distinguishable and are not applicable to the facts and circumstances of instant case and case titled Hussain and others v. Muhammad Ali was rejected under Order VII, Rule 11, C.P.C. before framing of issues and without recording of evidence of both the parties, therefore the Honourable apex court has remanded the case to the learned trial court with the directions to proceed with the suit on merits after framing of issues including the legal points, if the same are taken in the written statement or otherwise and decide the matter afresh in accordance with law.

15. From perusal of record it reveals that the present respondent No.1 namely Muhammad Yaqoob has filed cross objections under Order XLII, Rule 22, C.P.C. against the findings of the trial court recorded on issues Nos.1, 2, 3, 5 and additional issues Nos.1 and 4 which were registered vide C. Misc-41/2010 and 2015. We have carefully gone through findings recorded on all issues by the learned trial court.

16. Perusal of findings of trial court would reveals that neither the same suffer for want of jurisdiction nor result of mis-reading and non-reading of evidence on record or the same has been recorded illegally or with material irregularity resulting into miscarriage of justice.

17. The upshot of the above discussion is that this appeal as well as C.Misc No.41/2015 have no force and same are dismissed with no order as to costs. Consequently the impugned judgment/ decree dated 10-12-2014 passed by the learned trial court is up-held. File. ZC/178/GB Appeal dismissed.