1990 PLP 892 (CLC)

On 2‑1‑1978, Qamar Zaman Khan filed suit for possession by pre emption of House No.III.24.S.23‑A/25 situate Androon Mori Gate, Kutcha Ghulam Hasan Khan, Kasur Town, against Sheikh Riaz Ahmad and Sheikh Nisar Ahmad appellants, in the Couq.of Senior Civil Judge, Kasur. The suit was resisted whereon following issues were framed:‑ (1) Whether custom of pre‑emption exists ip the locality where the disputed house is situated? OPP. (2) Whether the ostensible sale price of Rs.30,000,was fixed in good faith or actually paid? OPD. (3) Market value, if issue No.2 is not proved ? O.P.Parties. (4) Whether the plaintiff is estopped from filing the suit ? OPD. (5) Whether the plaint is undervalued or understamped ? OPD. (6) Whether the suit is barred by limitation? OPD. (7) Relief. The parties led oral and documentary evidence as well. The plaintiff/respondent produced Muhammad ]qbal PW.1. He himself appeared as P.W.2 and tendered documents, sale‑deed P.1, plan of the disputed house P.2 and copies of the judgments and decrees passed by different Courts in suit for possession by pre emption of houses situated in Kasur town (Ex.P.3 to P.7). To rebut this evidence, Sheikh Riaz Ahmad appeared as DW.7. He produced Dildar Ahmad DW.1, Mistri Abdur Rashid DW.2, Muhammad Ishaque DW.3, Kamal Din DWA, Muhammad Asghar DW.5 and Fida Hussain DW.6. He also produced agreement to sell dated 4‑8‑1976, D.1 and sale‑deed dated 28‑12‑1.976 of the suit house as p.2. The trial Court dismissed the suit on 16‑1‑1985. Feeling aggrieved thereby Qamar Zaman Khan plaintiff/respondent filed appeal which was entrusted to learned Additional District Judge, Kasur, who vide his judgment dated 4‑3‑1986 accepted the appeal and decreed the suit of the respondent against the appellants. Hence this second appeal.

2. Before me the learned counsel for the appellants has challenged the findings of the Courts below on issue No.1, only which is as under:‑ "Whether custom of pre‑emption exists in the locality where the disputed house is situated ? OPP.

3. Learned counsel for the appellants submitted that it is a case where the judgments of Courts below are at variance; that the appellate Court has reversed the well‑reasoned findings of the trial Court on this issue without adverting‑to the evidence produced by the defendants‑appellants; that judgments Ex.P.5 to P.7 have been relied upon without examining contents thereof. On the other hand, the learned counsel for the respondent has supported the judgment of the appellate Court.

4. I have considered the submissions made by the learned counsel with care. I have not been able to persuade myself to agree with him. The learned Additional District Judge being an appellate Judge was/is final Court of facts. He was quite competent to believe/disbelieve the evidence disbelieved/believed by the trial Court. From the trend of paras 4 and 10 of the judgment, it is very much obvious that he has read, discussed and disbelieved the evidence produced by the defendants/appellants. The learned counsel has not been able to point out any misreading or non‑reading of material evidence by him. The Additional District Judge has relied on the judgments of Civil Court including judgment which was subsequently confirmed by the High Court, to hold that the custom of pre‑ 1 emption exists in Kot Androon Mori Gate, where the disputed house is situated. The judgment of the appellate Court does not suffer from illegality or material irregularity. On my independent assessment of the relevant evidence on issue No.l, I do not see any reason to disagree with the findings of the learned sappellate Court and also do not see any legal infirmity in the judgment and decree passed by the appellate Court. The submissions made by the learned counsel are devoid of force and substance.

5. Pursuant to the above discussion, the appeal is dismissed leaving the parties to bear their own costs. H.B.T./R‑196/L Appeal dismissed.