2008 PLP 2750 (YLR)

MUHAMMAD REAZ AKHTAR CHAUDHRY, J.

Through this petition for leave to appeal, the petitioners have sought the impeachment of the judgment and decree of the High Court dated 15-2-2005, whereby the appeal filed by the present petitioners was dismissed.

2. The precise facts forming the background of the instant petition for leave to appeal are that the non -petitioner/plaintiff brought a suit for possession on the basis of right of prier purchase in the Court of Civil Judge Mirpur regarding the land measuring 2 Kanals comprising survey Nos. 77 and 78 (old) 117(new), situated in village Moohri, Tehsil Mirpur. This suit was contested by the petitioners-defendants. After completion of trial, it was decreed. Feeling aggrieved from the said judgment and decree the petitioners filed an appeal in the Court of District Judge Mirpur, which was dismissed. Feeling dissatisfied from the judgment of the learned District Judge, the petitioners filed second appeal in the High Court. The High Court vide its judgment dated 15-2-2006 dismissed the appeal. Now, the instant petition for leave to appeal has been filed against the said judgment of the High Court.

3. Mr. Muzaffar Ali Zafar, the learned counsel for the petitioners argued that in the case; the arguments were only heard on the application for additional evidence, while the case has been finally disposed of the learned Judge of the High Court on merits. He submitted that no argument on merits of the case has been heard. In this respect he has also filed an affidavit. It was next submitted by the learned counsel that Sagheer Ahmed, pre-emptor/non-petitioner appeared before the trial Court as witness on 8-11-2000 and he did not narrate a single word that he is a co-sharer in the land in dispute and this statement was not read by both the lower Courts.

4. While controverting the arguments of the learned counsel for the petitioners, Chaudhry Ali Muhammad, learned counsel for the non-petitioner argued that the arguments were heard on the application for additional evidence as well as on the appeal. In this respect, he referred judgment of the High Court containing the arguments regarding the main appeal. It was further argued by the learned counsel that the statement of Sagheer Ahmed was recorded twice. On 18-1-2003 he appeared before the Court and deposed that he is a co-sharer and this portion of his statement was not challenged during the cross-examination. He further submitted that there are concurrent findings on the question of facts and no misreading or non-reading of evidence was committed by the lower Courts. Therefore, the High Court has rightly dismissed the appeal.

5. I have heard the learned counsel for the parties, perused the record and given my utmost muse to the arguments advanced by the learned counsel for the parties.

6. The primary question raised by the learned counsel for the petitioners is that no arguments have been heard in the appeal. The only arguments were heard on the application for additional evidence by the High Court has no substance. At page 3 of the judgment, it has been clearly mentioned by the learned Judge of the High Court "that I have heard the learned Advocates for the parties on the main appeal as well as on the application for additional evidence". The learned Judge clearly stated in the judgment that he was heard the arguments on the main appeal as well as on the application for additional evidence. Therefore, it could not be said that the arguments were not heard on the appeal.

7. As the contention of the learned counsel for the petitioners is concerned that misreading and non-reading of evidence was committed by the trial Court. In this respect, he referred the statement of Sagheer Ahmed dated 8-11-2000 and submitted that in this statement, it was not claimed by the pre-emptor that he was also a co-sharer. The learned counsel for the petitioners was confronted that the statement of Sagheer Ahmed was also recorded on 18-1-2003. In his statement he has clearly stated that he is a co-sharer and his portion of his statement was not challenged during the cross-examination. The learned counsel was directed to read the statement and the entire cross-examination, he read the statement and the cross-examination and could and could not point out that any cross-examination was conducted on his portion of statement of the non-petitioner, wherein he has stated that he is co-sharer. The learned counsel could not point out any sort of misreading or non-reading of evidence.

8. It is well-settled principle of law that the High Court while considering the second appeal, shall not interfere with the concurrent findings of facts recorded by the lower Courts, unless the lower Courts while recording the findings on the question of facts have either misread the evidence or ignored any material piece of evidence available on the record or the same was perverse. Generally the concurrent findings on question of facts are conclusive in absence of any illegality on account of misreading or non-reading of evidence, where the Courts below have concurrently given findings of facts, no misreading or non-reading of evidence has been found to have been committed that the High Court shall not interfere in second appeal.

9. In the instant case, there is concurrent finding on the question of fact that the non-petitioner/plaintiff has prior right of purchase and the question whether defendants had prior right of purchase is a question of fact. Concurrent finding on this question of facts is immune from interference under section 100 of, C.P.C. The nub of above discussion is that finding no force in this petition. It is hereby dismissed. H.B.T/93/S.C.(AJ&K) Petition dismissed.