JUDGMENT CH. MUHAMMAD TARIQ, J.---This Regular Second Appeal (R.S.A.) has been directed against the judgment and decree dated 5-10-2009 passed by learned Additional District Judge, Phalia, District Mandi Baha-ud-Din whereby he dismissed the appeal of the appellants-defendants with costs and upheld the judgment and decree dated 23-4-2009 passed by the learned trial court.
2. Brief facts of the case as mentioned in the R.S.A. Are that the suit land measuring 121 kanal 19 marla- .Fully described in the plaint was sold by Akhtar Nawaz etc. To the appellants vide Mutation No.420 dated 15-7-2006 against consideration price of Rs.20,00,000 but to defeat the superior right of pre-emption of the appellants-defendants, a fake price of Rs.40,00,000 was incorporated in the mutation as its face value. The respondent-plaintiff filed a suit for pre-emption on the ground that the respondent-plaintiff has a preferential right of pre-emption against the vendee being Shafi Shareek, Shafi Khaleet and Shafi Jar who has also performed Talbs in accordance with law. The suit was contested by the appellants-defendants by filing written statement. Out of divergent pleadings of the parties, following issues were framed: ISSUES: (1) Whether the plaintiff has fulfilled the requirement of necessary Talbs? OPP
(2) Whether the plaintiff has got superior right of pre-emption qua the vendee/defendant? OPP
(3) Whether the suit is defective and is liable to be dismissed being a buynomy one and due to partial pre-emption? OPD
(4) Whether the plaintiff is estopped to file this suit as he has already waived his right? OPD
(5) Whether the defendant incurred Rs.20,0000 as incidental charges for purchase of the suit land and they are entitled to receive the same in case the is decreed? OPD
(6) Whether the plaintiff is entitled to the decree as prayed for? OPP
(7) Relief"
3. After recording of oral as well as documentary evidence adduced by the parties, learned trial court vide judgment and decree dated 23-4-2009 decreed the suit of the respondent-plaintiff on the ground of Shafi Khaleet and Shafi Jar. The learned trial Court held that the respondent- defendant has failed to establish the factum of Shafi Shareek. The appellants-defendants filed an appeal which was dismissed on 5-10-2009 and the learned first appellate court held that though the respondent-plaintiff could not prove his superior right of the pre-emption on the ground of Shafi Shareek but the factum of Shafi Khaleet and Shafi Jar stand duly proved as held by the learned trial court in its judgment and decree and as a result, the learned first appellate Court dismissed the appeal. Hence this R.S.A.
4. Learned counsel for the appellants-defendants inter alia contends that the impugned judgments and decrees passed by both the learned courts below are against the facts and law.
The right of pre-emption of the respondent- plaintiff was not superior ..Qua the appellants- defendants. The respondent-plaintiff was not a co-sharer in Khata in dispute. Learned counsel further argues that the plea of contiguity has not been proved as per record. Neither Aks Shajra was proved as provided under the law nor Patwari was produced in evidence to support the factum of Aks Shajra Kishtwar and contiguity. The respondent-plaintiff has failed to prove the common source of irrigation nor such plea was available to respondent-plaintiff. Both the Talb-i- Muwathibat and Talb-i-Ishhad have neither been pleaded in accordance with law nor were proved and the notice Talb-i-Ishhad was not attested. Similarly, copies of Register Haqdaran Zameen were not attested by Circle Patwari. Learned counsel argues that all these important facts, were not considered by both the learned courts below, therefore, R.S.A. Be allowed, both the impugned judgments and decrees passed by learned courts below be set aside and the suit of the respondent-plaintiff be dismissed. In support of his contentions, learned counsel for the appellants defendants has relied upon 2009 CLC 462, PLD 2007 SC 302, PLD 2003 Peshawar 53, PLD 1978 Lah.
1027 and PLD 1973 SC 160.
5. Conversely, learned counsel for the respondent-plaintiff has vehemently controverted this R.S.A.
On the grounds that there are concurrent findings of fact against the appellants-defendants which could not be looked into in the Regular Second Appeal because the appellants defendants have failed to point out any illegality, infirmity or jurisdictional error in the impugned judgments and decrees. Both the learned courts below have passed the impugned judgments and decrees after careful examination of contentions raised by the learned counsel for the appellants defendants, as such, the R.S.A. Is liable to be dismissed.
6. I have heard the arguments advanced by learned counsel for the parties and have also perused the record available on file with their able assistance.
7. This Second Regular Appeal has been filed under section 100, C.P.C. The language of sections 100 and 101, C.P.C. Are reproduced as under:-- "100. Second Appeal.--Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by a Court subordinate to a High Court on any of the following grounds, namely:-
(a) the decision being contrary to law or usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(e) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.
101. Second appeal on no other grounds.---No second appeal shall lie except on the ground mentioned in section 100."
8. It is ex-facie "clear from the bare reading of sections 100 and 101, C.P.C. That a Regular Second Appeal is maintainable only on a question of law. The grounds raised in the instant appeal were raised before the learned trial court as well as before the learned first appellate court who after framing proper issues and recording of oral as well as documentary evidence gave exhaustive judgments. Both the learned courts below have unanimously held that the respondent-plaintiff could not prove his superior right of pre-emption being a co-sharer, however, the respondent- plaintiff has successfully proved the factum of Shafi Khaleet and Shafi Jar. Exh.P6 is a certified copy of Aks Shajra Kishtwar which fully establishes that the respondent-plaintiff is Shafi Khaleet and has superior right of pre-emption against the appellants/ vendees. That factum of Shafi Jar was also determined in favour of respondent-plaintiff by both the learned courts below.
9. The contention of the learned counsel for the appellants-defendants that notice Talb-i-Ishhad could not be proved as the respondent-plaintiff failed to produce the Postman in support of his assertion is misconceived because the receipt of notice Talb-i-Ishhad was not specifically denied by the appellants-defendants in their written statement. In Para 4 of the written statement, the appellants-defendants have conceded the receipt of notice Talb-i-Ishhad. Similarly, the objection of the appellants-defendants' counsel that notice Talb-i-Ishhad is not attested is also misconceived because notice Talb-i-Ishhad (Exh.P1) was duly witnessed and signed by three witnesses.
10. The other contention of the learned counsel for the appellants-defendants that the copies of revenue record Exh.P4, Exh.P5 were not attested by the Circle Patwari is incorrect as there is a note on the face of Exh.P4 in which the Circle Patwari has verified the contents of these documents and further that at the time of Exhibition, no objection was raised, so, the objection at this stage is untenable. There are concurrent findings of fact against the appellants-defendants. The law relied upon by the learned counsel for the appellants-defendants has no nexus with the case in hand.
Learned counsel for the appellants-defendants has also failed to point out any illegality, infirmity or jurisdictional error in the impugned judgments and decrees.
11. The outcome of the above discussion is that the R.S.A. Is without any substance, hence dismissed.