2019 PLP 26 (CLCN)

GHULAM MUSTAFA MUGHAL, J.

The captioned appeals arise out of the judgment dated 13.05.2016 passed by the Azad Jammu and Kashmir High Court in Civil Appeal No.109 of 2008. As both the appeals have been filed against one and the same judgment and involve common questions of facts and law, hence, were heard together and are decided as such.

2. The facts forming the background of the captioned appeals are that Muhammad Siddique, predecessor-in-interest of the respondents, herein, in Appeal No.200 of 2016 filed a suit for possession on the basis of right of prior purchase in respect of land comprising Khewet No. 1, Khata No. 35 measuring 20 kanal out of total land measuring 40 kanal, 13 marla, situated at village Rhindi, Tehsil Samahani, which was transferred vide sale deed-deed dated 31.05.1993, against Mohammad Hussain, appellant and Mohammad Akram, proforma-respondent, herein, in the Court of Civil Judge Samahani on 07.06.1.994. Mohammad Siddique Khan, predecessor-in-interest, of the appellants and proforma-respondents, herein, during the pendency of the said suit died, therefore, the present appellants were impleaded as his legal heirs. It was claimed by the plaintiffs that Muhammad Akram, proforma respondent, herein, has transferred the suit land to Muhammad Hussain, appellant, herein, in lieu of Rs.70,000/-. It was stated that the vendor has received the said amount and the market value of the land is also the same as has been received by the vendor, but in the sale-deed Rs.200,000/- has been entered as ostensible price to defeat the right of prior purchase of the plaintiffs. It was averred that plaintiffs and respondent, No.1 are co-sharer in khewat No.1, khata No.35, since the forefathers, whereas, the vendee has no concern with the suit land. It was stated that the land of the plaintiffs is adjacent to the suit land. It was claimed that the defendants were asked to receive the actual price i.e. Rs.70,000/- and hand over the possession of the land to them, but he persistently refused to do so, therefore, the plaintiffs are constrained to file the suit. The suit was admitted by defendant No.1 by filing cognovits. However, defendant No.2 contested the suit by filing written statement. It was stated by him that the suit is filed with mala fide intention and the plaintiffs have no locus standi to file the same. It was further stated that defendant No.2 is in possession of the suit land since long and he has constructed as many as 12 houses over the suit land. It was claimed that the sale-deed was executed in presence of the plaintiff and the same was in his knowledge, hence, he has waived his right of prior purchase, if any. The learned Trial Court framed issues and after recording evidence of the parties in support of their respective stand, vide judgment dated 28.2.2004, dismissed the suit for want of cause of action as well as want of proof. Feeling aggrieved from the said judgment of the Civil Judge, the appellants, herein, went in appeal before the District Judge, Bhimber. The District Judge, Bhimber vide judgment dated 11.2.2008 while concurring with the findings recorded by the Civil Judge, dismissed the appeal. The appellants, herein challenged the legality and correctness of the judgment of the District Judge by filing appeal before the Azad Jammu and Kashmir High Court on 9.5.2008. The learned High Court vide impugned judgment dated 13.5.2016 has accepted the second appeal and set aside the judgments recorded by the trial Court as well as the first appellate Court and decreed the suit filed by the plaintiffs. The plaintiffs-appellants before the High Court were also directed to deposit the consideration amount Rs.200,000/- along with the expenses of sale-deed with the trail Court within one month, failing which it was ordered that the suit of the plaintiffs/appellants shall be deemed to have been dismissed. Against the impugned judgment dated 13.05,2016, passed by the learned High Court both the parties have filed appeals. Raja Khalid Mehmood Khan and others have filed appeal to set aside the impugned judgment of the High Court to the extent of determination of market value of the suit land to the tune of Rs.200,000/-, whereas, Muhammad Hussain has filed the appeal for restoration of the judgments of the Courts below and vacation of the impugned judgment of the High Court.

3. Mian Sultan Mehmood, the learned Advocate appearing for Raja Khalid Mehmood Khan and others, appellants in Civil Appeal No.108 of 2016, vehemently argued that the judgment and decree passed by the courts below to the extent of decretal amount is violative of law, erroneous and capricious. The learned Advocate submitted that in fact the land in question has been sold for Rs.70,000/- and the amount entered in the sale-deed is Rs.200,000/- is ostensible and has been fixed with mala fide intention and arbitrarily in order to defeat the statutory right of prior purchase of the appellants. The learned Advocate argued that the Courts below have ignored a very important piece of evidence i.e. copy of the compromise decree dated 18.06.1995, through which Muhammad Hussain and others, respondents, herein, purchased a piece of land measuring 25 kanal, 19 marla from the same khewat in lieu of Rs.75,000/-. The learned Advocate further argued that the sale-deed was registered on 31.05.1993, whereas, the decree was passed on 18.06.1995, after a period of 2 years, in which price has been paid as Rs.75,000/- for 25 kanal, 19 marla land, thus, it cannot be said that Rs.200,000/- consideration money was fixed in good faith and was actually paid. The learned Advocate further argued that counter appeal filed by Muhammad Hussain and others, appellants, herein, is liable to be dismissed because the value of subject-matter is more than 50,000/-, hence, direct appeal under section 42(11) was competent before this Court and PLA could not be filed in the circumstances of this case. In support of his submission, the learned Advocate placed reliance on the cases reported as Ghulam Asghar v. Sarwar Begum and 15 others [2015 CLC 1406], Ibrahim Yaqoob and 6 others v. Ghulam Murtaza and 5 others [2016 SCR 896] and an unreported judgment delivered in a case titled Shahida Sikandar v. Muhammad Matloob and another (Civil Appeal No.45 of 2015, decided on 10.01.2017).

4. Conversely, Mr. Muhammad Rafique Dar, the learned Advocate appearing for the other side contended that the judgment of the High Court is illegal and erroneous for the reason that section 20-A of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (Bik.) has not rightly been interpreted by the Court. The learned Advocate timber argued that the provision of section 20-A of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (Bik) was added on 20.11.1998, through amendment Act No.VI of 1998. He added that the amendment was prospective in nature and cannot be applied retrospectively as per settled law, hence, the conclusion reached at by the trial Court as well as the first appellate Court was unexceptional and the impugned judgment is not legal one. The learned Advocate further argued that law can be interpreted as it is and not as ought to be, hence, the judgments referred to and relied upon by the learned High Court in support of the impugned judgment were not relevant because in all of those cases, the same like controversy was not directly involved. The learned Advocate further submitted that in the present case, as the defendant-vendee has improved his status during pendency of the case and before passing of the final decree, therefore, the judgment passed by the trial Court and affirmed by the first appellate Court was liable to be maintained and interference in the concurrent findings of fact recorded by the subordinate Courts was not justified. The learned Advocate further argued that as the plaintiff-pre-emptor has no cause of action and admittedly he has also not sought possession of the constructed houses, therefore, decree for possession would not be executable, hence, a Court cannot grant a decree which is unexecuteable.

5. We have heard the learned Advocates for the parties and have gone through the record of the case as well as the impugned judgment. Firstly, we would like to attend the question raised by Mr. Muhammad Rafique Dar, Advocate, appearing on behalf of respondents, herein, that plaintiff-appellants, herein, have no cause of action and their suit was rightly dismissed by the trial Court as well as the first appellate Court. This objection has been raised with reference to section 20-A of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (Bik.). This provision postulates that "any improvement made in the status of the vendee-defendant after institution of the suit for pre-emption shall not affect the right of pre-emptor-plaintiff in such a suit". Section 20-A was added through amendment in the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (Bik.) on 20.11.1998. Though the amendment has been made applicable with immediate effect but the Courts have made it applicable even to the pending cases that is why the learned High Court has not accepted the contention of Mr. Muhammad Rafique Dar, the learned Advocate for the respondents, herein, and has recalled the judgments and decrees of the Courts below. This provision of law has been considered by this Court in various judgments and after considering the case law from the Pakistan Jurisdiction and Indian side, it has finally been concluded that provision of section 20-A inserted through the above said amendment is procedural in nature and the defendant-vendee has no statutory right to improve his status before insertion of this section, therefore, the improvement in the status will not affect the statutory right of pre-emption after insertion of section 20-A in the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (Bik.). The proposition has been considered by this Court in a case reported as Mst. Sardar Begum v. Rehmat Khan and 11 others [2013 CLC 839], wherein, the defendant-vendee improved the status by becoming the co-sharer on the basis of a gift-deed in the same khewat from where the pre-empted sale was made. This Court considered the scope and application of section 20-A and set aside the judgment recorded by the learned High Court on the ground that the slams of the vendee cannot be unproved after insertion of section 20-A in the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (Bik.), notwithstanding the fact that the same has not been made applicable retrospectively. The Court also considered the phrase "right" with reference to the applicability of the provision on pending case and at page 182 of the report while relying upon the judgment delivered in the case titled Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab Province Lahore (PLD 1994 SC 1), observed as under:- A perusal of the above-reproduced amendment reveals that the amendment bars the improvement of status by the vendee after the institution of the suit. Any improvement in the status of the vendee shall not affect the right of pre-emptor-plaintiff in such suit. It is established law that the pre-emptor has to establish the right of pre-emption at three stages, i.e. at the time of sale, at the time of filing the suit and at the time of first decree. The position that the plaintiff must have a right of pre-emption at three stages is not a creation of statute nor is it incorporated in any of the provisions of the Right of Prior Purchase Act. Similarly the improvement of status is not recognized by any of the provisions of the Right of Prior Purchase Act. It creates no right in vendee-defendant under the right of Prior Purchase Act. It was being followed by implications. In the instant case it is clear from the record that the plaintiff had a right of pre-emption at the time of sale, at the time of institution of suit and also at the third stage, i.e. at the time of decree, because prior to reaching the third stage section 20-A had been incorporated in the Prior Purchase Act, which provides that improvement of status by the vendee-defendant shall not affect the right of plaintiff in such suit. The decree was passed after coming into force of the amendment. The language implied in section 20-A makes it crystal clear that it has been applied on the pending proceedings. The suit was pending when section 20-A was inserted through an amendment. In the case reported as Haji Rana Muhammad Shabbir Ahmed Khan v. Government of Punjab Province, Lahore [PLD 1994 SC 1], while dealing with the scope of section 22 of the Punjab Pre-emption Act, 1991, the Supreme Court of Pakistan observed that any improvement in the status of vendee after institution of the suit doesn't defeat the right of pre-emptor, no matter whether the improvement was made by an international act of the vendee or has taken place according to some natural event, like succession. In the case titled Baqa Muhammad Khan v. Kh. Zaffar Iqbal [2007 CLC 1693], a Division Bench of the High Court also came to the same conclusion. In presence of the above authoritative judgment of the Court, it cannot be said that the suit of pre-emption filed by Raja Khalid Mehmood Khan and others, pre-emptors, was liable to be dismissed on the ground that due to improvement in the status of the defendant-vendee. The view taken by the High Court is, therefore, correct and the judgments of the Courts below were not proper and legal.

6. The second question, which requires resolution is as to whether the Petition for leave to appeal (PLA) against the impugned judgment dated 13.05.2016, filed by Muhammad Hussain and others was maintainable in view of subject-matter of the suit. The controversy has already been set at rest in light of the provisions of subsection (11) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974. Clauses (d) and (e) of subsection (11) of section 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, which read as under:- "(d) If the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than fifty thousand rupees or such other sum as may be specified in that behalf by Act of the Council and the Judgment decree, or final order appealed from has varied or set aside the Judgment, decree or final order of the Court immediately below: or (e) If the Judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value and the Judgment, decree or final order appealed from has varied or set aside judgment, decree or final order of the Court immediately below; or" A perusal of the above reproduced provision would show that if the amount or value of the subject-matter of the dispute in the Court of first instance was, and also in dispute in appeal is, not less than 50,000/- rupees and the judgment, decree or final order appealed from has varied or set aside the judgment, decree or final order of the Court immediately below, direct appeal is competent. Clause (e) further stipulates that if the judgment decree or final order involving directly or indirectly some claim or question respecting property of the like amount or value and the judgment is varied or set aside by the High Court then also direct appeal is competent. In the present case, as the value of the subject-matter of the dispute was more than 50,000 rupees, therefore, it was enjoined upon Muhammad Hussain and others to file direct appeal against the judgment dated 13.05.2016, passed by the High Court. However, we have noticed that this fact is not fatal because PLA in this case has been filed on 13.06.2.016 and leave has been granted on 29.11.2016. As the PLA has been filed within limitation and leave has also been granted, as a result, PLA has been converted into appeal therefore, we are of the view that due to this technical defect, the appeal filed by Muhammad Hussain and others cannot be rejected.

6. The third and the last question which is required to be resolved is regarding the amount of sale consideration. The determination of the market value of the sold land is primary duty of the Court and it has to be considered while keeping in view the provisions contained in section 26 of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (Bik.), which reads as under:- "

26. Market Value how to be determined.

For the purpose of determining the market value the Court may consider the following among other matters as evidence of such value:- a) The price of value actually received or to be received by the vendor from the vendee, or the amount really due on the footing of mortgage as the case may be; b) The amount of interest included in such price, value or amount; c) The estimated amount of the average annual net assets of the land or property; d) The land revenue assessed upon the land or property; e) The value of similar land or property in the neighborhood; f) The value of the land or property as shown by previous sales or mortgages." A perusal of the record reveals that the pre-emptor has relied upon very important document i.e. compromise decree dated 18.06.1995, for the purpose of proving the consideration amount but the Courts below have not considered this document while deciding the question of market value of the suit land. Similarly, we have noticed that the defendant-vendee has taken the categoric stand that he is in possession of the sold land much before the institution of the suit and has constructed 12 houses over the same. Issue No.11 was raised by the learned trial Court to the same effect. A perusal of the record further reveals that the learned trial Court appointed a commission and directed the S.D.O., to visit the spot and determine the value of the construction/improvement. The statement of the S.D.O. was also recorded and the estimate regarding the improvement is also on the record. The learned trial Court has not accepted the statement on the ground that the S.D.O., at the time of preparing the report of cost of the improvement, has not summoned the plaintiff and the local Patwari. In our consideration, the defect pointed out by the learned trial Court was justified. However, it is well settled law that on the basis of an act or omission of any authority or the Court, a party cannot be made to suffer. In view of the stand taken by the defendant which has not been denied in the pleadings by filing replication, it was enjoined upon the trial Court to direct the S.D.O., to revisit the disputed land and determine the improvement in presence of the parties as well as the local Patwari. Ordinarily, this Court is reluctant to remand the cases, specially so, when the parties have already suffered the agony of trial but the above mentioned points cannot be resolved without having the wisdom of the trial Court, therefore, we are inclined to remand the case to the learned trial Court to appoint the commission who shall re-determine the cost of improvement effected on the suit land in presence of the parties and local Patwari. Similarly, the question of determination of the market value of the sold land shall also be re-judged by the Court in light of section 26 of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 (Bik.), and in light of the compromise decree dated 18.06.1995. Both the appeals stand accepted in the manner indicated above and while setting aside the judgment and decrees of all the Courts below, the original case is remanded to the trial Court for determination of the above reflected points in accordance with law within a period of 3 months. ZC/18/SC(AJ&K) Case remanded.