1996 PLP 1540 (CLC)

Another suit was filed by Mst. Hassan Noor alongwith other heirs of Noor Alain Khan deceased on July 8, 1966, for cancellation of the above deed on the ground of its being violative of the provisions of Land Reforms Act. In the first round of litigation the learned Sub‑Judge, Bagh dismissed the suit of pre‑emption filed by Mst. Hassan Noor but decreed the suit filed by Mst. Hassan Noor and other heirs of Noor Alain Khan deceased for cancellation of the deed of exchange on account of the same being violative of provisions of Land Reforms Act. On appeals filed by Mir Ahmad Khan and Mst. Hassan Noor in the Court of District Judge, Rawalakot both the appeals were accepted and the cases were remanded to the Trial Court. The Trial Court in the second round of litigation vide order, dated February 2", 1975, decreed the suit of pre‑emption filed by Mst. Hassan Noor and dismissed the second suit. It was opined by the Trial Court that the transaction between the parties was in fact a sale. Again on appeal the learned District Judge. Rawalakot vide his order, dated March 15, 1978, remanded the case and observed that the transaction was an exchange. On appeal filed by Mst. Hassan Noor in the High Court the appeal was accepted vide order dated April 23, 1981, and the case was remanded to the Trial Court. Oh behalf of appellant Mst. Hassan Noor in the High Court it was argued that Mir Ahmad Khan during the pendency of suits secured a registered sale‑deed of the same land out of Khasra No.659 situate at Bani Pasari from the other heirs of Noor Alain Khan deceased, originally claimed to be taken in exchange vide exchange deed, dated January 17, 1962. The High Court by accepting the appeal of Hassan Noor remanded the case to the Trial Court to decide the same afresh in the light of second sale after recording additional evidence of the parties. In accordance with the direction of the High Court vide its order, dated April 23, 1981, the Trial Court proceeded with the matter. Mst. Hassan Noor filed another suit for pre‑emptinng the second sale. A counter‑suit for pre‑emption was filed by one Ali Akbar. The learned Trial Judge consolidated all the four suits and struck issues and provided the parties the opportunity to adduce additional evidence. On the conclusion of the trial the learned Sub‑Judge, Bagh vide his order dated October 31, 1989, decreed the suit of pre‑emption filed by Mst. Hassan Noor for a consideration of Rs.400 All the other three suits were dismissed by, the learned Sub‑Judge. This decree passed by the Trial Court was upheld in appeal by the District Judge and the High Court vide the impugned order, dated June 5, 1995_ Hence this appeal.

3. It was contended by Kh. Nazir Ahmad, Qadri, the learned counsel appearing on behalf of appellants, that the decree was granted against the deed of exchange of land validly executed on January 17. 1962, against which no right of pre‑emption was available The learned counsel submitted that the High Court, as. well as the Courts below committed a grave illegality in passing a decree for pre‑emption in favour of Mst. Hassan Noor, the predecessor‑m‑interest of respondents. It was also submitted with vehemence that the Trial Court as well the first and second Appellate Courts misdirected themselves by misreading and non‑reading, the evidence on the record. It was also pressed into service by the learned counsel that it escaped the notice of High Court and Courts below that findings were not recorded issue‑wise as required under Order 20, Rule 5 of Civil Procedure Code, thus rendering the impugned judgment and decree into a nullity.

4. Muhammad Nazir Khan, respondent No.8 and the attorney for respondents Nos. 1, 5 and 6, controverted the arguments raised by the learned counsel for the appellants. The attorney submitted that the Trial Court after due appraisal and scrutiny of the evidence on the record reached the conclusion that transaction between Mir Ahmad Khan and Noor Alain Khan was in fact a sale which was shown as a deed of exchange. This finding of fact was confirmed by the District Judge who is the sole Judge of findings of fact. The High Court, according to the attorney very rightly did not interfere into the findings of fact recorded by the Trial Court and First Appellate Court.

5. We have given our passionate thought to the arguments advanced from both the sides and perused the record made available with care. It may be stated that the learned Sub‑Judge, Bagh after perusal of the evidence on the record reached the conclusion that the transaction between Noor Alain Khan and Mir Ahmad Khan for alleged exchange of land was in fact a sale but the same was camouflaged as an exchange deed. The aforesaid finding was recorded by the learned Sub‑Judge after appraisal of evidence of Feroze Din, Muhammad Nazir Khan, the attorney for plaintiff Mst. Hassan Noor, who appeared as a witness and produced the copy of statement of Mir Ahmad Khan defendant Exh. PJ and the statements of the witnesses produced by both the parties.

6. In his elaborated judgment, the learned Sub‑Judge formed the opinion that normally when transaction of exchange takes place between the parties it is but natural for them to go on the spot and to verify the position but the statements of the witnesses show that Noor Alain Khan deceased or any of his heirs never visited village Kothian, where from the land was to be taken by him on the basis of exchange from Mir. Ahmad Khan. Feroz Din P.W. when appeared as a witness for plaintiff Mst. Hassan Noor stated that a cow was sold by him to Noor Alain Khan who paid the price but promised to pay remaining amount of Rs.61 when he would sell his land. On the day the land was sold by Noor Alain Khan he received the payment of Rs:61 by Noor Alain Khan. On that date plaintiff Mst. Hassan Noor also came in the Court and was crying that Noor Alain Khan had sold the land to Mir Ahmad Khan but she wanted to purchase the same. Muhammad Nazir Khan the attorney for plaintiff produced the statement of Mir Ahmad Khan defendant Exh_ P1 in the Court‑ In a portion of statement it was stated by Mir Ahmad Khan during the course of cross- examination that he did not know whether after purchasing 5 Kanals of land from Noor Alain Khan there remained any other land or not. The learned Sub -Judge also expressed the view that it had come on record that through a subsequent sale‑deed, dated April 13, 1970, Mir Ahmad Khan purchased land out of Khasra No.659 from Mst. Qismat Bi and other heirs of Noor Alain Khan whereas according to the basic claim Mir Ahmad Khan got the land out of Khasra No.659 on the basis of transaction of exchange executed on January 17, 1962. The learned Sub‑Judge also held that Mir Ahmad Khan in his written statement averred that the market value of the suit land was Rs.500. As said earlier, on the basis of aforesaid appraisal of evidence the conclusion, thus drawn by the learned Sub‑Judge was that the transaction between Mir Ahmad Khan and Noor Alam Khan was in fact a sale. This finding was confirmed by the learned District Judge. The High Court vide the impugned order did not disturb the findings of fact recorded by the Trial Court end the First Appellate Court simply on the ground that a concurrent finding of fact cannot be disturbed unless and until it is shown that the evidence was misread and was not appreciated in accordance with the accepted principles.

7. In our view the conclusion drawn after appraisal of evidence by the learned Sub‑Judge and confirmed by learned District Judge; Bagh appears to be plausible. In our considered opinion it admits of no exception that when evidence had received due and full consideration by the subordinate Courts on a fact, the finding cannot be disturbed by the High Court on the ground that the inference drawn by the Courts did not fairly arise out of the evidence. If the High Court for that reason disturbs the concurrent findings it assumes jurisdiction not vested in it under section 100 of Civil Procedure Code. In second appeal it is not possible to disturb concurrent findings of fact simply because some other view point, on the evidence produced could also be taken.‑In the reported case Mst. Kubra Begum v. Muhammad Yasin Khan (PLD 1983 SC (AJ&K) 56), it was held at page 61 that: "A finding of fact, it is now settled law, cannot be disturbed in second appeal unless it can be shown that the evidence was misread and the finding is based on surmises and conjectures. Erroneous finding of fact however, inexcusable it may be cannot be disturbed in second appeal unless there is some defect in the procedure causing error in the decision of the case on the merits." In the case. reported as Noor Akbar Khan v. Abdul Aziz Khan and 9 others (PLD 1981 SC (AJ&K) 115), it was held at page 116‑A that :‑‑ "It is well‑recognized principle of law that concurrent finding of fact recorded by the Court below, based on the appreciation of evidence. cannot be vacated in second appeal; and even if this Court would have come to a different conclusion, if fresh appraisal of evidence is made, this would not provide a valid ground for acceptance of a petition for leave to appeal." In a recent case reported as Adalat Khan v. Fazal Hussain end another (1995 SCR 151), the same view was reiterated at page 154 that:‑‑ "Even if a different conclusion from the one reached by the Courts below is possible, the High Court is not legally competent to disturb the findings until and unless a case of 'non‑reading or misreading of evidence is made out or a gross illegality is shown to have been committed while appreciating evidence of a witness. No such eventuality exists in the instant case. Thus, we are of the view that there was no valid reason for the High Court to disturb the concurrent findings of the Courts below."

8. Thus it becomes absolutely clear that even if a different view would have been possible from the appraisal of evidence, the same could not have been taken by the High Court and it very rightly did so. Besides had the transaction been an exchange of land, between Noor Alam Khan and Mir Ahmad Khan, there seems to be no point in execution of sale‑deed for Khasra No.659 by the successors of Noor Alam Khan in favour of Mir Ahmad Khan. This factor also supports the contention of respondents. The subsequent sale‑deed of the disputed land in favour of person who had obtained the same by exchanged land supports 8 the contention of respondents that sale was made to give overt effect to the earlier deed which was in fact a sale‑deed but shown to have been executed as an exchange. The objection taken by the learned counsel for the appellants that the judgment recorded by the Trial Court does not conform to the provisions of Order 20, Rule 5 of Civil Procedure Code is also devoid of any force. The perusal of judgment recorded by the Trial Court shows that it does not suffer from any such illegality. The upshot of the above discussion is that finding no force in this appeal, the same, therefore, stands dismissed‑with costs. A.A./114/SC (AJ&K) Appeal dismissed.