' The above 2nd titled appeal has been directed against the judgment and decree passed by District Judge, Kotli dated 18.08.2011 whereby the judgment and decree passed by Civil Judge, Court No. III Kotli dated 25.11.2009 has been maintained to the extent of Issues No. 2 & 3.
2. Briefly, the facts resulting into the filing of the instant, appeal are that mother of present appellants Raj Bi, plaintiff, filed a suit for possession against Babar Hussain and others defendants/respondents, herein on 12.02.2007 in the Court of Civil Judge, Court No. 3 Kotli in respect of land comprising Khewat No. 8 Khata No. 36 Survey No. 676 measuring 14 marlas situated in village Kotera Khanqah Tehsil Charhoi District Kotli, stating therein that vide sale-deed dated 17.10.2006, Defendant No. 3 has alienated the suit land to Defendants No. 1 & 2. It was claimed that the plaintiff is co-sharer, co-khewat, as well as she is enjoying the right of easement of the suit land. It was stated that the defendants/vendees are residents of another village and have no preferential vis a vis to the plaintiff It was alleged, that the sale of the suit land was kept concealed, therefore, the plaintiff could not get knowledge of the transaction. It was claimed that the sale was actually worth Rs. 3,00,000/- however, in order to defeat the preferential right of purchase of the plaintiff the consideration amount has been entered, more than the actual.
3. The suit was contested by the defendants, by filing written statement, wherein, they refuted the claim of the plaintiff and craved that the suit be dismissed with costs on the ground of limitation as well cause of action.
4. In light of the pleadings of the parties, the learned trial Court framed issues and directed the parties to lead evidence. After completion of the proceedings, the learned trial Court vide judgment dated 25.11.2009 decreed the suit with the direction that the decretal amount shall be deposited in the Court within one month, however, the suit was dismissed to the extent of possession. Feeling aggrieved from the said judgment and decree, Raj Bi plaintiff/appellant, preferred an appeal before the learned District Judge, Kotli on 24.12.2009. The learned 1st appellate Court, after hearing the parties, vide impugned judgment dated 18.08.2011 also concurred with the findings of the trial Court and dismissed the appeal for having no substance. The above judgment and decree of the learned 1st appellate Court has been assailed by the appellants through the supra titled appeal.
5. Ch. Mehboob Ellahi, Advocate, the learned counsel for the appellants, reiterating the grounds taken in the appeal argued that the claim of the plaintiff/appellant to the extent of consideration amount was amply proved before the learned trial Court by producing oral as well as documentary evidence, but the learned trial Court failed to consider and resolve the controversy in its true perspective and passed the impugned judgment and decree in a hasty manner, without application of judicial mind. The learned counsel maintained that both the Courts below fell in error while resolving Issues No. 2 & 3 because the claimed market value of the suit land was proved by adducing 3 years average of the vicinity, which does not exceed then three lac and the defendants/vendess have also not produced any sale-deed in support of their version. The learned counsel claimed that the findings of the learned trial Court were liable to be reversed but the learned 1st appellate Court, also fell in grave error while concurring with the findings of the learned trial Court, with closed eyes. The learned counsel claimed that the impugned judgment and decrees of the learned Courts below are badly hit by mis-reading and non-reading of record and un-rebutted documentary evidence. Finally, the learned counsel prayed for acceptance of appeal and reversal of the judgment and decrees of both the Courts below and referred the following case law:- i. 2002 CLC 749 (SC AJK), ii. 1994 SCR 185, 1995 SCR 151.
6. Raja Masood Khan, Advocate, the learned counsel for the respondents, on the other hand, controverted the arguments advanced on behalf of the appellant, forcefully and argued that the plaintiff's witnesses did not support her version before the trial Court neither the plaintiff could produce any sale-deed of the locality. The learned counsel contended that the suit land is of commercial nature, market value of which, even exceeds the amount actually paid, therefore, the learned trial Court has rightly passed the impugned judgment, and decree which, after detailed hearing, also stood approved and upheld by the 1st appellate Court. The learned counsel claimed that the plaintiff, miserably failed to establish her claim before the trial Court, hence, her suit was dismissed on the ground of cause of action as well as being time-barred. He maintained that no mis-reading or non-reading of record or evidence or misconstruction of any law has been proved by the appellants, specifically, therefore, concurrent-findings of facts, rendered by the Courts below cannot be disturbed in 2nd appeal. Defending the impugned judgment and decrees, the respondent claimed that the impugned judgment and decrees, being strictly in accordance with law do not warrant any interference by this Court and requested for dismissal of the appeal with heavy costs. In support of his submissions, the learned counsel referred the following case law:-- i. 2006 SCR 414. ii. 2011 SCR 501.
7. I have heard the learned counsel for the parties, perused the record, appended therewith and considered the law on the point with utmost care.
8. It may be stated that the plaintiff/appellants claimed the market value of the suit land, to be less than the amount entered in the sale-deed but in this regard, the record does not support their version as there is no such sale-deed on the record. Mere a three years average, prepared by the Patwari, is not a sufficient proof to differ with the concurrent findings of the Courts below. Moreover, even if the average prepared by the Patwari is considered in the interest of Justice, even than, the, same does not establish that the sale-deeds on the basis of which the average has been prepared, were of the same nature and market value, as the suit land is, therefore, in my considered view, the learned trial Court has rightly dismissed the suit to the extent of price of the suit land. The law also provides guidelines for assessment, of market value of the land, relevant provision of the Right of Prior Purchase Act, 1993 BK, is very usefully reproduced, hereunder:- '26. Market value how to be determined.-For the purpose of determining the market value, the Court may consider following among other matters as evidence of such value:-
(a) Xxxxxxxx
(b) Xxxxxxxxx
(c) ,Xxxxxxxxxx
(d) XXXXXXXXXX
(e) The value of similar land or property in the neighborhood."
9. The learned trial Court, in its judgment has categorically mentioned that the suit land is of commercial nature which situates at the main road near Dhamal Bazar, therefore, for the purpose of determination of market value of such land, record regarding the land of similar nature and status was to be produced and proved but the same is lacking in the instant case.
10. It is also worth mentioning here that in light of the precedent case law, referred by the learned counsel for appellants, this Court is not allowed to disturb the concurrent findings of the Courts below even if a different conclusion from the one reached by the Courts below is possible. In case titled Adalat Khan us. Fazal Hussain and another, [1995 SCR 151], their Lordships in the apex Court of AJK has observed as under:- "xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx.
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."
11. The other case law, referred by the learned counsel for the appellants, need to be discussed in detail because the same is also not helpful to the version of the appellants.
12. It may be stated that the instant case is that of concurrent findings. Interference in the concurrent findings of the Courts below is permissible under law but with certain conditions and the same is not open for all circumstances. For instance, the concurrent findings cannot be gone into for reconsideration of facts or evidence or for some other inference rather the same can be done if some mis-reading, none reading of record or evidence or misconstruction of any law is established, amply.
13. In view of above stated fact and examination of the record I have come to the conclusion that no mis-reading, non-reading of record or evidence, or mis-construction of any law has been pointed out by the appellants. I am also in agreement with the arguments of the learned counsel for the respondents that no interference in C concurrent, findings of the Courts below can be made on mere allegation of mis-reading and non-reading.
14. It may also be observed that a party seeking reversal of concurrent findings has to establish its case for interference and no such resolution can be passed in vacuum, as is found in the instant case.
15. The pith and substance of the above detailed discussion is that the instant 2nd appeal fails to make out any case of interference, hence, stands dismissed with costs.
16. Order announced. The file shall be consigned to record after completion, by sending back the record of the Courts below.