2018 PLP 115 (CLCN)

RAJA SAJJAD AHMED KHAN, J.

This second appeal has been filed against the judgment and decree passed by learned Additional District Judge Sehsnsa on 21.10.2016, whereby, an appeal filed by the appellant has been dismissed whereas the judgment and decree passed by learned Civil Judge Sehnsa dated 29.10.2016 has been maintained. Brief facts forming background of the instant appeal are that suit for possession through right of prior purchase in the Court of civil Judge Sehnsa has been filed by plaintiff, Bashir Khan, against defendant Ahmed Hussain, on 08.09.2011 alleging therein that the defendant/ appellant, purchased the land situated at village Piahi, Tehsil Sehnsa comprising survey No.442 min, measuring 5 kanal, out of land 11 kanal, from defendant No.2, Muhammad Ishaq Khan through sale-deed on 12.05.2011. It was averred that the plaintiff, Bashir Khan is co-sharer of the suit land, whereas defendant No.1, Ahmed Hussain, had no concern with the suit land and he had no right for prior purchase of the said land. It was further averred that defendant No.2 sold the land to defendant No.1 in consideration of Rs.10 Lac, which was actual price of the suit land while the other amount has been added in sale-deed just to prevent and damage the plaintiff for his right of prior purchase. Lastly it was prayed that the suit may be decreed in favour of plaintiff, against defendant. On filing of the aforesaid suit, defendants were summoned. Defendant No.2 did not appear before the Court, thus, on 23.09.2011, an ex parte proceedings was made against him. Defendant No.1 appeared before the trial Court and submitted written statement stated therein that plaintiff has no cause of action and suit is liable to be dismissed. It was further stated that the bargaining of the said land between defendants No.2 and No.1 was executed by plaintiff and an agreement to sell was executed between them on 26.07.2005, so, the said agreement was executed between them with the consent and knowledge of the plaintiff and the plaintiff had waived his right himself. The defendant refuted the whole claim of the plaintiff and lastly prayed that the suit of the plaintiff may be dismissed. In light of the pleadings of the parties, 9 issues were framed by the learned trial Court. After framing issues, the plaintiff was ordered .to lead evidence. Plaintiff in support of his claim produced two witnesses along with the attorney and got recorded their statement. The plaintiff also produced documentary evidence, i.e. Naqal Jamabandi (Exh.PA), copy of sale-deed (Exh.PB) and copy of jamabandi (Exh.PC). In rebuttal, defendant No.1/appellant, herein, in support of his claim, produced three witnesses and got recorded their statement; whereas Ahmed Hussain (vendee) also got recorded his statement and produced documentary evidence i.e. agreement to sell (Exh.DA), copy of plaint (Exh.DB), copy of written statement (Exh.DC), copy of statement (Exh.DD) and Exh.DE, DF, DG, DH, DI, Exh.DJ. Exh.DK, DL, DM, DN, DO, DP and Exh.DQ. After completion of evidence, plaintiff has filed written arguments whereas, defendant No.1 argued the case personally. The learned trial Court, after considering arguments of the parties accepted the suit of the plaintiff, and a decree for possession through right of prior purchase was granted in favour of plaintiff in consideration of money Rs. 30 Lac along with expenses of sale-deed and directed him to deposit the same within one month, otherwise the suit shall be deemed to be dismissed vide judgment and decree dated 29.01.2016. Feeling aggrieved, the defendant/appellant preferred an appeal before Additional District Judge, Sehnsa on 28.03.2016. The learned Ist appellate Court concurred with the findings of the learned trial. Court maintained the judgment and decree of the learned trial Court and dismissed the appeal of the appellant vide impugned judgment and decree dated 21.10.2016, hence, this 2nd appeal. Ahmed Hussain, appellant, herein personally appeared before the Court and reiterated the facts narrated in the appeal and submitted that he paid the whole amount in sum of Rs.30 Lac to defendant/ respondent No.

2. He submitted that plaintiff has waived his right of pre-emption as he was the person who convinced him to enter into bargain and on his motion he obtained the disputed land. He further submitted the judgment and decrees passed by both the Courts below are against the law and facts of the case, which are liable to be set aside. He prayed that the Suit filed by Bashir Khan may be dismissed and relief may be granted in favour of appellant in accordance with law. Muhammad Yaqoob Mughal, the learned counsel appearing on behalf of respondents argued that the learned Courts below have rightly passed the impugned judgments and decrees which need no interference by this Court. The defendant No.1 and pro forma respondent are co-sharer of the suit land. The learned counsel further argued that, no mis-reading and non-reading of evidence has been found in the impugned judgment and decrees, therefore, the same may be maintained and appeal filed by appellant may be dismissed. The learned counsel also referred an unreported case of Hon'ble Supreme Court of AJ&K, titled "Salam Din v. Abdul Karim and others" decided on 29.05.2017. I have heard the arguments of appellant, as well as learned counsel for the respondents and gone through the record of the case with due care. A perusal of record reveals that trial Court framed 9 issues which are reproduced as under:- The trial Court decided issue No.1 in favour of plaintiff, issue No.2 against the plaintiff, issue No.3 in favour defendant/appellant, issue No.4 as per issue No.3, issue No.5 in favour of plaintiff, issue No.6 against the defendant/appellant, issue No.7 against the defendant-appellant, issue No.8 against the defendant and suit was decreed. The 1st appellate Court concurred with the findings of the trial Court. The plaintiff/respondent did not prefer an appeal against issues Nos.3 and 4 regarding sale price. The trial Court decided issues in light of facts, record and law which were rightly concurred by the learned Additional District Judge, but both Courts below fell in error while deciding issue No. 7 which goes into the roots of case. Issue No.7 is reproduced hereunder:- I would like to appreciate this issue in light of pleadings and evidence. The defendant-vendee/appellant herein in his written statement filed on 16.11.2011 specifically pleaded that:- The defendant/appellant produced witnesses namely Nasir Mahmood, Junaid Ahmed and Adil Ahmed and got recorded his own statement. In their statement it has been specifically deposed that the bargaining of the suit land between the vendor and vendee was done through plaintiff. The statement of defendant/appellant is very important, which is as under:-- It was further deposed in his statement that:- It was further narrated at page 3 of the statement:- The abovementioned portion of the statement of the defendant/appellant has not been cross-examined. It is now well settled that if any portion of statement of a witness which goes against a party is not challenged in cross-examination that shall be deemed to be admitted as correct. Admitted facts need not to be proved. The evidence produced by the defendant/appellant clearly shows that plaintiff/respondent actively participated in the negotiations of bargain of land and plaintiff by his conduct lost his right of prior purchase. Even otherwise it was specifically alleged in written statement that Plaintiff by his conduct has waived his right of pre-emption and plaintiff himself was the best witness to deny this fact but despite the fact that defendant filed an application for summoning plaintiff for recording his statement but plaintiff got recorded his statement through attorney (Zafar Iqbal). The statement of attorney was recorded by the trial Court on 24.09.12 wherein he has not denied the allegation of waiver in his examination-in-chief which is as under:- It was further deposed in his statement that:- In cross-examination, he has not denied when he was asked regarding that the bargaining of the suit land was done between them by the plaintiff, Bashir Khan. The relevant portion of the statement of attorney narrated as under:- In the peculiar facts of the case an adverse inference can be drawn against the plaintiff, Bashir Khan, when he himself did not appear before the Court. The learned courts below have not appreciated evidence on issue No.7 in its true perspective. The conclusion drawn by the learned Courts below on the issue No.7 is the result of non-reading of evidence which resulted in great miscarriage of justice. In the light of what has been discussed above, the defendant/ appellant, herein, has proved that the respondent has waived the right of prior purchase of the suit land and the learned Courts below have not appreciated the evidence produced by the defendant-appellant properly and reached at erroneous conclusion. Resultantly, the appeal is accepted and impugned order passed by Additional District Judge Sehnsa dated 21.10.2016 is set-aside, and suit No. 115/11 instituted on 08.09.2011 in the trial Court, titled "Bashir Khan v. Ahmed Hussain" stands dismissed. ZC/32/HC(AJ&K) Appeal allowed.