P L D 2024 High Court (AJ&K) 15 (PLP)

CHAUDHARY KHALID RASHEED, J.

The captioned appeal has been filed against the judgment and decree passed by the learned District Judge Bhimber dated 02.04.2019, whereby, judgment and decree passed by learned Civil Judge Samahni dated 18.07.2018 has been maintained. Brief facts forming background of the instant appeal are, Qammar Din appellant herein filed a suit for possession on the basis of right of prior purchase along with perpetual injunction against Muhammad Latif and others respondents herein in the Court of Civil Judge Samahni on 09.02.2015, wherein sale deed dated 16.10.2014 was pre-empted being sharik-e-khewat sharik-e-khata, co-sharer in sold survey number and on the basis of easement rights. It was also contended that consideration amount between the parties was fixed as Rs.20,00,000/- which is also market value of the land but in order to defeat the right of pre-emption the consideration amount was maliciously entered as Rs.40,00,000/- in the sale deed dated 16.10.2014. Defendants contested the suit by filing written statement wherein, the claim of plaintiff was refuted. The learned trial Court framed issues in the light of pleadings of parties, provided them opportunity to lead evidence heard pro and contra and at conclusion of the proceedings decreed the suit in the terms that if plaintiff deposits consideration amount as well as expenses of registry total Rs.44,20,010/- the suit would be deemed to have been decreed vide its impugned judgment and decree dated 18.07.2018. Feeling aggrieved, appellant herein assailed the judgment and decree of the trial Court to the extent of issue No.2 before District Judge Bhimber through appeal. The learned District Judge after extending hearing to the parties dropped the appeal vide its impugned judgment and decree dated 02.04.2019, hence the captioned second appeal. The learned counsel for the appellant vehemently argued that plaintiff by producing cogent and convincing documentary as well as oral evidence proved that market price of the sold land is Rs.20,00,000/-, however, in order to defeat the right of pre-emption, consideration amount has wrongly been entered as Rs.40,00,000/- but both the Courts below failed to appreciate the evidence in this regard led by the plaintiff and erroneously decided issue No.2 against plaintiff. The learned counsel for the respondents supported the impugned judgment and decree on all counts, thus beseeched to dishonour the same. I have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution. The plaintiff in order to prove his stance, placed on record a sale deed Exh.PC whereby, 2 kanals and 17 marlas of land has been sold for the consideration of Rs.5,00,000/- in the year 2004. He also produced sale deed Exh.PD whereby, 3 marlas of land has been sold for the consideration of Rs.2,00,000/- in the year 2004. Vide Exh.PF produced by the plaintiff, 4 marlas of land has been sold in lieu of Rs.6,00,000/- in the year 2010. Vide Exh.PG, sale deed relied upon by the plaintiff, 10 marlas of land has been sold in lieu of Rs.1,00,000/- in the year 2014, similarly, vide Exh.PH, 12 marlas of land has been sold for the consideration of Rs.15,00,000/- in the year 2012. Sale deed dated 27.11.2014 is relevant for determination of market price of the land, however, the land sold through the said sale deed is not of commercial nature while the witnesses produced by the plaintiff admitted in their court statements that the land sold through the impugned sale deed is of commercial nature, hence market price of a commercial land and non-commercial land cannot be held similar. The learned Courts below have appreciated every iota of oral and documentary evidence led by the parties and reached at a just conclusion which hardly requires any indulgence of this Court. Furthermore, the question that whether the land through the impugned sale deed was sold for the consideration of Rs.20,00,000/- or Rs. 40,00,000/- is a pure question of fact and both the Courts below have decided the same against the plaintiff concurrently. It is a trite law that concurrent findings of facts cannot be reversed in second appeal unless flagrant misreading or non-reading of evidence is pointed out by the appellant or flagrant violation of any statutory law has been committed by the Courts below. Reliance in this regard may be placed on 2022 SCR 416, wherein the Supreme Court of Azad Jammu and Kashmir at page 428 observed as under:- "The principle is that ordinarily the second appellate Court, such as this Court, would not interfere with the findings of fact recorded by the trial Court and confirmed by the first appellate Court. Second appellate Court under section 100, C.P.C., would overturn such findings and conclusions only in exceptional cases. The circumstances under which such intervention may legally be permissible or justifiable if it was established with absolute clearness that some oversight or error resulting in a miscarriage of justice was apparent in the way in which the Courts below had dealt with the facts, it must be established that Courts below clearly erred in the presence of a crucial documentary evidence or the principle of evidence had not properly been applied or the findings was so based on erroneous proposition of law that if that proposition be corrected, the finding will become meaningless and finally, it must be demonstrated that the judgments of both the Courts below were clearly wrong." As no misreading or non-reading of evidence or violation of any settled maxim of law has been illuminated by the appellant hence, in view of settled precept of law second appeal is not sustainable except on any of the grounds mentioned in Section 100, C.P.C. The nub and epitome of the above discussion is, finding no essence the instant appeal is hereby sacked. MQ/3/HC(AJ&K) Appeal dismissed.