' SARDAR ABDUL HAMEED KHAN, J.---The above captioned appeal has been directed against the judgment, and decree passed by District Judge Mirpur on 31-8-2005, whereby, the judgment and decreed passed by Civil Judge Mirpur on 4-2-2005 has been vacated.
2. Facts, forming the background of the instant appeal are that Muhammad Bashir, defendant- respondent, purchased the land measuring one kanal 5 marla, comprising survey No,49, khaata No,6/6, khewat No,2/2, village Khokhar Tehsil and District Mirpur from Naseeb Ali through a sale- deed registered on 18-9-1999. The plaintiff-appellant filed a suit for possession on the basis of the right of prior purchase being a co-sharer in the land. It was averred that plaintiff and defendant No,2 are real brothers, hence, the plaintiff is co-sharer in the suit land. It was claimed that defendant No, 1/vendee has no right to purchase the suit land without first serving a notice upon the plaintiff. It was alleged that actual consideration amount has been paid by the vendee is Rs,75000, whereas, in order to defeat the right of prior purchase of the plaintiff the same has been entered in the sale-deed as Rs,100,000. A decree for possession on the basis of right of prior purchase was solicited.
3. The suit was contested by defendant No,1 by filing written statement, wherein, besides, refuting the claims of the plaintiff it was stated that the defendant, being owner of land comprising survey No,50, khewat No,2/2, falls within the definition of 'shafi sharik'. Moreover, it was claimed that survey No,50, being adjacent with the suit land brings the defendant in the line of 'shafi jaar' hence, the defendant is in possession of preferential rights to purchase the suit land as compared to the plaintiff.
4. In light of the pleadings of the parties, the learned trial Court framed issues and directed the parties to prove their claims by adducing evidence. On completion of proceedings, the learned trial Court vide judgment and decree dated 4-2-2005 decreed the suit. Muhammad Bashir, defendant- respondent herein, filed an appeal in the Court of District Judge Mirpur on 13-5-2005. The learned District Judge Mirpur after detailed hearing vide judgment and decree dated 31-8-2005 accepted the appeal and set-aside the judgment and decree of Civil Judge Mirpur by declaring that defendant Muhammad Bashir is also co-sharer in Khewat No,2/2. The plaintiff, appellant herein, filed an appeal before this Court which was dismissed on 5-1-2013. Feeling dissatisfied and aggrieved from the aforesaid judgment, the appellant filed an appeal before the Hon'ble Supreme Court of AJ&K which was accepted and the case has been remanded for fresh decision with the direction to decide the application for additional evidence first and thereafter, the appeal on merit.
5. Mr. Nisar Anjam, Advocate, the learned counsel for the appellant, vehemently argued that the controversial point between the parties was, whether the defendant was co-sharer in the suit land or not. The learned counsel contended that the impugned sale-deed was registered on 18-9-1999, the suit for pre-emption was filed on 8-12-1999 whereas Mutation No,56 on the basis of which the defendant- respondent claims to be 'shafi sharik' has been attested on 13-3-2000, whereby, it becomes crystal clear that at the time of execution of sale deed as well as at the time of institution of pre-emptive suit the defendant-respondent was not in the ownership and possession of land comprising survey No,50. The learned counsel pressed into service that the defendant in his written statement and even in his statement concealed the fact that land comprising survey No,50 has been purchased by him during the pendency of the suit and in this way the defendant obtained several opportunities for filing written statement. It was argued by him that in order to conceal this very fact the defendant, even at the time of filing of written statement did not annex the mutation relied upon by him and tried to convince the court by filing copy of `jams-bandi' which also pertains to year 2000-2001 and the same is sufficient proof to ascertain that there is no record of his ownership or possession over the land comprising survey No,50. The learned counsel maintained that although the learned trial Court did not consider the controversy in its true perspective and fell in error while deciding issues Nos.3 and 4 even then, the relief was granted on the basis that the plaintiff being real brother of the donor has a preferential right, viz-a-viz to the defendant-respondent herein. The learned counsel submitted that the learned Court below, without consideration and appreciation of the evidence brought on record, illegally and arbitrarily accepted the appeal and dismissed the suit filed on behalf of the plaintiff appellant herein. It was further submitted by him that this Court, in earlier round of litigation also fell in error and concurred with the findings of the learned Court below without considering and deciding the application for additional evidence. The learned counsel maintained that the copy of mutation sought to be placed on record earlier, being a public document was of vital importance and could be helpful to the Court for just and proper decision of the case but this Court failed to decide the controversy as was required under law hence, while accepting the appeal, the Apex court of Azad Jammu and Kashmir has remanded the case for afresh decision. The learned counsel vehemently contended that though the application for amendment of the plaint has been filed in 2nd appeal, however, for the just and lawful decision of the case, it is permissible. Alternatively, he argued that the copy of mutation is a public documents as well as admitted document of which the Court should take judicial notice, if this document is read with other evidence, the falsehood of the defendant/respondent will become crystal clear. Even otherwise, both the Courts below have misread the copies of revenue record, specially, 'Jamabandi' Exh. DB and DC. Referring to PLD 2004 (AJ&K) 17, the learned counsel craved for acceptance of the appeal, on merits. Alternatively, the application for the amendment of plaint be allowed and the case may be remanded back.
6. Ch. Manzoor Hussain, the learned counsel for the defendant-respondents supported the impugned judgment of the learned District Judge and contended that the suit of the plaintiff was rightly dismissed by the learned Court below which stood approved by this Court in earlier round of litigation and the same has become a past and closed transaction which cannot be reopened at this stage. The learned counsel maintained that the plaintiff in his statement himself admitted the fact of ownership of the defendant on land comprising survey No,50 which situates in khewat No,2/2 hence, he has admitted the defendant as 'sharik khewat' therefore, the plaintiff was not justified in claiming preferential right over the defendant. It was argued by the learned counsel that the plaintiff-appellant herein, after having slept over the matter for a pretty long time filed an application before this Court for bringing on record an additional evidence which could be produced by him before the 1st appellate Court which did not merit any consideration at such a belated stage. The learned counsel maintained that the application for additional evidence was liable to, be rejected in first instance however, while passing the judgment this Court did not mention the application, which cannot be termed as a deficiency on the part of defendant respondent hence, he cannot be penalized for an act, not done by him. Referring to 1996 SCM R 598 and 2014 SCR 789, the learned counsel submitted that an application, for additional evidence can only be granted in the circumstances when the trial Court has rejected the same but in the case in hand the application was filed at the verge of conclusion of second appeal and prayed for dismissal of the appeal with heavy costs.
7. I have heard the learned counsel for the parties, perused the record and considered the case- law referred by the parties.
8. First of all I would like to take up the controversy regarding application for production of additional evidence as has been directed by the Hon'ble Supreme Court. In this regard, I have given anxious thought to the material brought on record pertaining to the ownership of defendant- respondent herein, over the land comprising survey No,50, khewat No,2/2 being part of the same corpus as well as adjacent to the said property i,e, survey No,49 situated in village Khokhar Tehsil and District Mirpur.
9. The deep dive in the documentary evidence has persuaded me to decide the controversy between the parties on merit, because there is already sufficient material on record to dispose of the matter on merits. Moreover, the document (copy of Mutation No,56) appended with the application for additional evidence is an attested copy by concerned Government official. Hence, the same may be termed as public document. In this view of the matter, separate order on application is not required, in stricto sensu.
10. The only controversy emerged from the record of the case is 'improvement of status of vendee'. However, the moot point is whether the status has been improved before the institution of suit or thereafter. For resolving the point, the findings spelt out from the record of the case are as under:--
(a) The suit land was alienated by the vendor to defendant-respondent No,1 herein vide sale deed dated 18-9-1999 which was pre-empted by the plaintiff-appellant herein by filing pre-emption suit on 8-12-1999.
(b) As per the record defendant No,1 appeared before the Court on 13-1-2000 and obtained adjournment for filing written statement thereafter, the defendant obtained as well as three opportunities and finally on 11-5-2000 filed the written statement, wherein, he claimed his prior right of purchase, being 'Shafi Shareek' as well as `Shafi Jaar' but neither appended nor referred or relied upon any document/instrument/revenue record, etc.
(c) The defendant/vendee exhibited copies of revenue record during the course of recording of his Court statement on 22-12-2004 consisting of 'Jamabandi' pertaining to period of Kharif 2000 to Rabi 2001, but he did not bother to exhibit the exchange deed and the mutation on the basis of which he claimed ownership of land survey No,50, in the village and deliberately concealed the date of registration of sale-deed and date of attestation of mutation, thereof by playing a clever trick. However, the head note on Exhs.DB and DC as Khareef 2000 to Rabi 2001, makes it clear that the entry regarding the ownership and 'possession of the vendee in the periodical revenue record is regarding the transaction which was made in 2000 to 2001 and not in 1999.
11. It may be stated that as per the above-said revenue record, when, looked into with of the copy of Mutation No,56 (The document for proposed amendment as additional evidence), which has been attested on 13-3-2000 in pursuance of an exchange deed dated 12-2-2000, whereas, the impugned sale-deed was executed on 18-9-1999 which was pre-empted by the appellant herein, on 8-12-1999, hence, it can safely be concluded that the aforesaid exchange deed in favour of vendee and mutation, thereof, were executed and attested after the institution of the suit, which is not permissible under law. In this regard section 20-A of the Jammu and Kashmir Right of Prior Purchase Act, 1993 (BK), "Act No, II of 1993 Bk." is the governing law on the point, which was added in the Act by an Ordinance dated 15-7-1998 and then by amending Act VI of 1998 dated 20-11-1998, which is very usefully reproduced here under:-- "20-A, Improvement made in the status of the vendee defendant after institution of the suit. Any improvement made in the status of a vendee-defendant after the institution of a suit for preemption 'shall not affect the right of the pre-emptor plaintiff in such suit."
12. The controversy regarding the improvement of status after institution of suit for pre-emption has been resolved by this Court in case titled 'Aqal Hussain v, M. Aslam Khan (PLD 2004 (AJ&K) 17), relied upon by the learned counsel for the appellant, as under:- "(i) Azad Jammu and Kashmir Right of Prior Purchase Act.
' S. 20-A-Right of Prior Purchase---Continuation--- extent-provision S.20-A of Azad Jammu and Kashmir Right of Prior Purchase Act being new legislation allows right of prior purchase to continue after institution of suit. Plaintiff's suit was pending when new legislation came into existence- language used in amended S.20-A of the Act would suggest that improvement in the status of vendee after institution of suit was not permissible."
13. Having considered the wisdom of the legislature in the above reproduced provision of law as well as supra noted case-law, this Court is justified to hold that improvement in the status of the vendee after the institution of suit shall not affect the right of pre-emptor/plaintiff (appellant, herein), hence, the entries of ownership/ possession in Exhs. DB and DC (copies of Jamabandi pertaining to year 2000-2001) is of no help to the vendee/respondent. It is obvious that the Exhs. DB and DC have been misread by the Court below. In this eventuality the permission to allow amendment in plaint or additional evidence and formal exhibition of copy of Mutation No,56 dated 13-3-2000 is also not required.
14. The same view was taken in case titled M. Rashid 7. M. Khaliq and 3 others, 2001 CLC 1124. At page 91 of the report their lordships in the Apex Court of AJK have pleased to observe as under:- " 5 . We have given due consideration to the arguments raised at the Bar. The first question which needs resolution is as to whether Section 20-A was introduced by way of amendment when the suit filed by the plaintiff-appellant was only partly decreed to the extent of 1 kanals 4 sarsahis and the rest of the suit was dismissed because defendant-respondent had become a co-sharer by way of getting a gift-deed executed in his favour before the institution of the suit. Obviously, the plaintiff-appellant could not say that his suit should have been decreed because in the instant case it has not been shown by the counsel for the appellant that there is any recognized principle in Muslim Jurisprudence that an improvement in the status of the vendee before the institution of the pre-emption suit would not affect the right of the plaintiff preemptor."
15. It is also worth mentioning here that the vendee-respondent herein, in order to conceal the fact of improvement in the status after the institution of suit with a clever device, suppressed the fact of execution of exchange-deed on 12-2-2000 and attestation of Mutation No,56 on 13-3-2000 before the trial Court. Although the claim of the defendant was not objected by the plaintiff by filing replication/ rejoinder etc. Before the trial Court but in my considered view it was judicial responsibility of the trial Court to probe the instrument creating a conflicting right to the other side, especially in the light of entries of revenue record. The learned 1st appellate Court also failed to consider the controversy in accordance with law while holding that the defendant-respondent herein, has a preferential right viz-a-viz to the plaintiff because the document on the basis of which the defendant claims his dual right i,e, 'shafi khaleet" and 'shafi Jaar' was nowhere in the field on the date of execution of the impugned sale-deed and even on the filing of the pre-emption suit. It is justified to add that appreciation of evidence is the sole responsibility of the Courts, which in this case is lacking and case of misreading of documentary evidence is clearly made out. Hence, the resolution on issue No,6 in the light of above referred evidence is not tenable at any score, because the vendee failed to prove that improvement in his status was prior to institution of suit.
16. It will not be out of place to mention that copy of mutation appended with the application for additional evidence, brought before the Court is a public document having seal of a government official which needed no further proof. It is in fact not an additional evidence rather the same is document, upon which, the periodical record of revenue Exhs. DB and DC is based, which is judicially noticed. It is further added that the mutation is also an admitted fact in the light of statement of vendee/respondent, who during the course of cross-examination, in his statement dated 22-12-2004 stated the fact of attestation of mutation, hence, the Court is justified to consider and appreciate this document, while proceeding under Articles 85, 111, 112 and 113 of Qanun-e- Shahadat Order, 1984.
17. Having returned my findings on the justification of considering the said mutation without formal permission of additional evidence, remand the case to the trial Court for decision afresh is not warranted. Moreover, this Court is afraid that rehearing and re-proceeding of the case will take decades and the very purpose of the speedy justice will be destroyed because the justice delayed is the justice denied.
18. As said earlier, the perusal of the record compels this Court to think that the defendant- respondent, herein, obtained more than three adjournments for filing written statement for the period starting from 13-1-2000 to 11-5-2000. It is interesting to note that exchange-deed Mutation No,56 was registered and attested during the intervening period i,e, 12-2-2000 and 13-3-2000, respectively. Hence, no preferential right could be claimed on the basis of this document obtained for improvement of status of vendee, during pendency of the lis.
19. In view of the above, it is safely concluded that the claim of the defendant-respondent that land comprising survey No,50 was purchased before execution of impugned sale-deed stands belied by the record relied upon and produced by him as Exhs.DB and DC, when read with his statement referred above.
20. Law is well settled that a preemptor must be in possession of right of prior purchase at three stages namely, at the time of sale, institution of suit and the date of decree. It is an admitted fact that the pre-emptor appellant has been a co-sharer in the suit-land on all the above three stages therefore, it cannot be said that the pre-emptor was not entitled to a decree for possession on the basis of right of prior purchase. A reference can be made to a 1995 M LD 1299, wherein the apex Court of Azad Jammu and Kashmir in a case titled "Fazal Daad v. Khadim Hussain and another" has observed that "A pre-emptor must possess prior right at three stages, namely, at the time of sale, institution of suit and the date of decree"
21. The case-law referred by the learned counsel for the respondent needs not to be discussed as the case is being disposed of on merits.
22. After due appreciation of oral and documentary evidence brought on record this Court is constrained to hold that the defendant vendee was not a co-sharer in the suit-land hence, he had no preferential right over the pre-emptor therefore, resolution passed by the learned District Judge on issue No,3 is struck down and the said issue is decided in favour of the plaintiff preemptor.
Similarly, issue No,6 in light of the resolution passed on issue No,3 stands decided against the vendee/respondent. Resultantly, issue No,4 stands resolved in favour of pre-emptor/appellant.
23. The consequence of above detailed discussion is that the instant appeal is accepted, while declaring the plaintiff-appellant entitled to the decree for possession on the basis of right of prior purchase being a co-sharer in the suit property. The impugned judgment and decree passed by learned District Judge Mirpur on 31-8-2005 is hereby vacated. Resultantly, the judgment and decree passed by the learned trial Court on 4-2-2005 stands restored, in the light of findings and the observations made hereinabove. The appellant pre-emptor shall deposit the decretal amount fixed by the trial Court within a period of two months (provided if the same has not been deposited, earlier), failing which, the suit of the plaintiff-appellant shall be deemed to have been dismissed.
Cost will follow the events.
24. Order announced. The file shall be consigned to record after due completion by sending back the record of the Courts below. Second .