2017 PLP 552 (MLD)

RAJA SAEED AKRAM KHAN, J.

The titled appeal by leave of the Court has been addressed against the judgment and decree of the High Court dated 28th October, 2014, whereby, the appeal filed by Muhammad Hussain (late), the father of the appellant, herein, has been dismissed.

2. The facts necessary for disposal of the instant appeal are that the father of the appellant filed a suit for possession on the basis of right of prior purchase regarding the land comprising survey No.640, measuring 15 kanal, 3 marla, situate at village Dothan, Tehsil Rawalakot, Distrcit Poonch. The version of the plaintiff was that the land owned by him is adjacent to the pre-empted land, moreover, his right of passage of water is attached with the pre-empted land, thus, he falls in the category of shafi khalit and shafi jar and he has the preferential right to purchase the land in dispute. After necessary proceedings, the trial Court decreed the suit in favour of the plaintiff. The defendant-respondents, herein, filed an appeal in the Court of District Judge, Rawalakot, which was entrusted to the Additional District Judge. The Additional District Judge while accepting the appeal set aside the judgment and decree passed by the trial Court. The plaintiff feeling aggrieved from the judgment and decree of the 1st Appellate Court filed an appeal before the High Court. The learned High Court through the impugned judgment and decree dated 28th October, 2014, dismissed the appeal, hence, this appeal by leave of the Court.

3. Sardar Muhammad Ejaz Khan, Advocate, the learned counsel for the appellant argued that the impugned judgment is against law and the facts of the case which is not sustainable in the eye of law. He added that the learned High Court while passing the impugned judgment failed to appreciate the record in its true perspective. He submitted that the status of the appellant as Shafi Khalit even has not been denied by the witnesses of the respondents while recording their statements, but both the appellate Courts below failed to consider this aspect of the case in a legal manner. He contended that the plaintiff specifically alleged in the plaint that his land comprising survey Nos.720 and 721 is adjacent to the pre-empted land, moreover, the course of water is also common, therefore, he has the superior right of purchase. He added that the respondents have not denied the version of the appellant which amounts to evasive denial on their part, but this aspect of the case escaped the notice of the High Court while passing the impugned judgment. He forcefully submitted that the appellant proved his case through cogent evidence, therefore, the trial Court rightly passed the decree in favour of the plaintiff-appellant but the learned District Judge without any justification disturbed the well reasoned findings recorded by the trial Court and the learned High Court also fell in error while upholding the judgment and decree of the first appellate Court. He lastly submitted that the revenue record produced by the appellant has totally been ignored by both the appellate Courts below.

4. On the other hand, Mr. Muhammad Asif Kiyani, Advocate, the learned counsel for the respondents strongly opposed the arguments advanced by the learned counsel for the appellant. He submitted that the impugned judgment is perfect and legal which is not open for interference by this Court. He contended that no piece of evidence has been misread; therefore, the concurrent findings of both the Courts below cannot be interfered with. He added that the appellant failed to prove his claim through reliable evidence, therefore, the trial Court was not justified to pass the decree in favour of the appellant. He contended that it is an admitted position that the land of the appellant is bifurcated from the pre-empted land by a dry drainage (nala), therefore, it cannot be said that the land of the appellant is adjacent to the pre-empted land or any right of the appellant is attached with the same.

5. We have heard the learned counsel for the parties and gone through the record along with the impugned judgment. The plaintiff filed suit for possession on the basis of right of prior purchase against the defendant-respondents. The version of the plaintiff was that his land is adjacent to the pre-empted land, moreover, his right of passage of water is attached with the pre-empted land, therefore, he falls within the category of the Shafi Khalit and Shafi Jar and entitled to get the decree for possession of subject land. To prove this version, the plaintiff produced two witnesses and the attorney of the plaintiff also recorded his statement as a witness. The plaintiff also produced a copy of sale-deed, Exh.PA, site-sketch Exh.PB and a copy of mutation No.110, Exh.PD as documentary evidence. At first, we deem it proper to reproduce here section 14 of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 Bik, which deals with the pre-emption matters. "

14. Persons in whom right of prior purchase vests in respect of sales of agricultural land and village immovable property:

(1) Subject to the provisions of section 13 the right of prior purchase in respect of agricultural land and village immovable property shall vest:-- (a) firstly in shafi-sharik, (b) secondly in shafi khalit; and (c) thirdly in shafi jar. Explanation: 1. "Shafi Sharik" means a person who is a co-owner in the corpus of the undivided immovable property sold with other person or persons. (2) "Shafi Khalit" means a participator in the special rights attached to the immovable property sold, such as right of passage, right of passage of water or right of irrigation. (3) "Shafi Jar" means a person who has a right of pre-emption because of owning an immovable property adjacent to the immovable property sold." In the light of the aforesaid statutory provisions of law, we have to examine the evidence produced by the appellant to ascertain the fact whether the appellant falls in the category of the Shafi Kahlit and Shafi Jar or not. Muhammad Khalil, the witness of the plaintiff stated in his statement that:-- This witness further deposed that:-- Another witness, Muhammad Ishaq while recording his statement deposed that:-- Muhammad Ishaq further deposed that:-- The plaintiff-appellant himself appeared before the Court as a witness and while recording his statement has stated that:-- After going through the statements of the witnesses, it is evident that the land of the respondents is adjacent to the pre-empted land; the land of the plaintiff is bifurcated from the pre-empted land by drainage (nala), and the passage of water of both the parties is common. The documentary evidence produced by the appellant, i.e. site sketch, Exh.PB, shows that a drainage (nala) bifurcates the pre-empted land from the land owned by the plaintiff, whereas, the copy of mutation No.110, Exh.PD is also not helpful to the case of the appellant as the preferential right of purchase of the plaintiff has not been proved from the same. After examining the evidence brought on record by the plaintiff, we do not find anything on the basis of which it can be said that the appellant falls in the category of Shafi Khalit or Shafi Jar. In such circumstances, it can safely be concluded that the appellant failed to prove his claim and the first appellate Court was justified to dismiss the suit filed by the plaintiff and the learned High Court has rightly concurred with the findings recorded by the first appellate Court. Same proposition came under consideration of this Court in a recent unreported case titled Zahid Hussain v, Aftab Ahmed and others (Civil Appeal No.4 of 2015 decided on 13.03.2016) wherein this Court while upholding the findings recorded by the Courts below has observed as under:- "

6. During the course of arguments, a query was made to the learned counsel for the appellant; whether the land in dispute and the land owned by the appellant are situated in the same khewat, he submitted that according to the statutory provisions, for being shaffi jar, the right is not confined to corpus of the property sold rather the main consideration is adjacency of the property with the pre-empted land. It may be observed here that in the instant case, the defendant-respondents have taken a specific stand that the land owned by the plaintiff-appellant is separated from the pre-empted land by a road, moreover, the land owned by the plaintiff-appellant and the pre-empted land falls in separate khewats and the pre-empted land is in possession of the defendant-respondents since long and huge improvements over the same have been made by them. In such situation, it was enjoined upon the plaintiff-appellant to prove the adjacency/proportion of his share adjacent to the property sold through cogent evidence, but the perusal of the record reveals that no such evidence has been brought on record by the plaintiff-appellant. The plaintiff-appellant neither produced the concerned patwari as witness, nor brought on record the relevant site-sketch as documentary evidence. In absence of any authentic proof, mere on the statements of the witnesses that the land of the plaintiff-appellant is also adjacent to the pre-empted land, the decree cannot be passed in favour of the plaintiff-appellant, especially when the opposite part claims that the land of the plaintiff is not adjacent to the pre-empted land rather a road/path gets both the lands separated from each other." As in the case in hand the appellant failed to point out any misreading or non-reading of the evidence or any gross-illegality, therefore, interference of this Court in the concurrent findings is not warranted under law. In the light of above discussion, this appeal having no substance stands dismissed with no order as to costs. ZC/33/SC(AJ&K) Appeal dismissed.