This revision petition, filed by Mst. Noor Nisa against Abdus Salam and Abdul Qadus, is directed against the judgment and decree, dated 22-3-1980, of the learned Additional District Judge, Haripur whereby the appeal filed by the petitioner herein, against the judgment and decree, dated 7-11-1978, of the Civil Judge, Haripur was dismissed. The facts giving rise to this revision petition may briefly be stated as under :
2. Mst. Noor Nisa, the petitioner herein, purchased a house from one Abdul Ghani, through a registered sale deed, dated 31-5-1973. Against that sale, Abdus Salam and Abdul Qadus, respondents herein, filed a Pre-emption suit in the Court of Civil Judge, Haripur claiming that they having property contiguous to, and being participators in the immunities and appendages of, the suit property have a superior right over the vendee. The sale considera--tion mentioned in the sale deed was also challenged by them.
3. Mst. Noor Nisa, petitioner herein, contested the suit on many grounds, which gave rise to as many as eight issues, framed by the trial Court.
4. The learned trial Judge held that the plaintiffs have a superior right to pre-empt the sales, and were not estopped from filing the suit. He also held that the sale was not exempt from pre-emption and the suit was not bit by limitation. He, therefore, decreed the suit in favour of the plaintiffs on payment of Rs. 15,000.
5. The petitioner herein, not satisfied with the judgment and decree passed by the learned trial Judge, went in appeal to the Court of the Additional District Judge, Haripur, wherefrom, vide the judgment and decree, dated 22-3-1980, the appeal was dismissed. It is against this judgment and decree of the learned Additional District Judge that the petitioner has come to this Court-in revision.
6. The learned counsel for the petitioner, in this Court, confined his arguments to Issue No. 3 only, which is in the following words: "Whether the sale in dispute is exempt from pre-emption ?"
7. The learned counsel for the petitioner, while arguing the case, has contended that the two Courts below have misread the evidence brought on the record and have, therefore, committed material irregularity in the exercise of their jurisdiction. In order to prove his contention, the learned counsel for the petitioner took me through the entire evidence brought on record. He has also argued that the learned trial Judge, while deciding issue No. 3, has neither discussed the evidence brought by the petitioner on the record, nor considered the admission made, in favour of the petitioner, by Abdus Salam respondent in his cross-examination. As regards the judgment passed by the learned Additional District Judge, the learned counsel for the petitioner has submitted that the perusal of this judgment would show that the learned Additional District Judge has not only failed to discuss the evidence brought on the record by both the parties on material points relating to this issue, but has also totally failed to notice on the record the statement given by the petitioner in the proceedings of the case, which was recorded on Commission. He has further pointed out that like the trial Court, the learned lower appellate Court also failed to consider the material admissions made in the statement of Abdus Salam respondent, which went in favour of the petitioner.
8. The learned counsel for the petitioner has also contended that the two Courts below have totally misread the evidence in arriving at the conclusion that the petitioner was the resident of village Mehlum, to which she originally belonged, and not of Haripur, where the disputed property is situate. On the basis of the aforesaid contentions, the learned counsel for the petitioner has submitted that this Court has jurisdiction to upset the concurrent finding of fact arrived at by the two Courts below. To support his arguments the learned counsel has relied the authorities reported as PLD 1974 SC 22, 1980 SCMR 760, PLD 1980 Pesh. 22, PLD 1980 B J 29, PLD 1980 Lah. 434, PLD 1978 Lah. 994, PLD 1964 Kar. 549 and PLD 1969 Pesh. 118.
9. The learned counsel for the respondents has argued that the two Courts below, while discussing issue No. 3, have properly considered the evidence brought on the record and have reached the conclusion, which, being concurrent and relating to facts, cannot be upset in revision by the High Court. He has also contended that the petitioner, on whom the burden of proof lay in respect of issue No. 3, has failed to bring cogent evidence on the record to show that, (i) she is the resident of Haripur, (if) she does not own a house nor a vacant site measuring more than 5 marlas in Haripur, and (iii) she purchased the disputed house for her own occupation. On the basis of the evidence brought on the record, he has urged that the learned two Courts below were right in arriving at the conclusion that the sale. In question was not exempt from pre-emption, which finding is not open to challenge in revision before the High Court.
10. The learned counsel for the respondents has also contended that in order to prove that the petitioner was the resident of Haripur, she was also required to prove that she had abandoned her residence at village Mehlum, to which she previously belonged. In support of his arguments, the learned counsel for the respondents has relied on PLD 1979 Kar. 488, PLD 1960 Dacca 884, PLD 1979 B J 211, PLD 1974 Pesh. 63 and PLD 1964 Pesh. 140.
11. Relying on the exemption provision contained in section 5 of the N: W. F. P. Pre-emption Act, 1950, the petitioner herein, while contesting the suit, has pleaded that the disputed sale was exempt from pre-emption. The relevant section, as it originally stood, contained three clauses. In the year 1973, however; by way of amendment, through Act IX of 1973, clause (d) was added to section 5, after clause (c), in the following words "(d) agricultural land or urban immovable property, consisting of an area measuring not more than 10 marlas, purchased by a resident of the town in which such land or property is situated, where neither he owns a house nor a vacant site measuring more than 5 marlas for constructing a house for his own occupation."
Since the property in dispute is situated within the urban area of Haripur, it was, in fact, clause (d) of section 5 of the N.-W. F. P. Pre-emption Act, which was relevant in the case, and not clause (c) referred to in the judgments of the trial Court and the learned lower appellate Court. This would mean that the proper law was not applied by both the Courts below.
12. For claiming exemption under the law the petitioner-defendant, who has set up such plea, was required to prove (i) that the area of the disputed property measured not more than 10 marlas, (ii) that she was the resident of Haripur Town where the disputed property is situate, (iii) that she neither owned a house nor a vacant site measuring more than 5 marlas in Haripur Town and (iv) that the disputed house had been purchased by her for her own occupation. It is, therefore, to be seen whether on the basis of the evidence brought on the record the petitioner-defendant has been able to prove that all the four necessary ingredients of clause (d), referred to above, did exist in the case.
13. The two Courts below, no doubt, have referred to the evidence brought by the parties on the record. The learned trial Court, while dealing with this issue, in its judgment has referred to the statements of the petitioner-- defendant and her witness Nazir Ahmed. The learned trial Court has also referred to the statement made by Abdus Salam respondent-plaintiff in this connection. The learned trial Court, in the light of the evidence referred to above, came to the conclusion that the evidence so produced fall short of the required standard. It was held by the learned trial Court that the petitioner-- defendant was the resident of village Mehlum and not of Haripur Town and she, therefore, could not claim the exemption provided under the law.
14. The learned lower appellate Court, while dealing with this issue, in para. 4 of the judgment observed as under : "The evidence produced by her would show that her brother Nazir Ahmad her Mukhtiar has appeared as D. W. 1 and one Muhammad Rafiq, being a marginal witness of the same registered Exh. D. W. 1/2, has appeared as D. W.
2. This is her entire evidence in the case. Nazir Ahmad D. W. 1 is an important witness on her side and he had of course stated that the vendee Mst. Noorun Nisa resides in Haripur and this is his only statement on this score of the case. He is a resident of village Mehlum and is not aware of the whereabouts or the description of the suit property as was admitted by him in his cross-examination. D. W. 2 Muhammad Rafiq had stated nothing on this aspect of the case." in para. 6 of the judgment the learned lower appellate Court observed as under : "Examining the case in hand in the light of the above statutory and case-law, I see no reasons to interfere with the order of the learned trial Judge. Admittedly the suit property is situated in village Haripur. The vendee Mst. Noorun Nisa is the resident of village Mehlum to start residing permanently at Haripur, where the suit property is situated. She was, therefore, not entitled to the exemption claimed for."
15. From the aforesaid paragraphs of the judgment of the learned lower appellate Court it is clear that the said Court has totally failed to notice that on the record the statement of Mst. Noorun Nisa, petitioner-defendant, was also available on this point.
16. The two Courts below have decided this issue against the petitioner-- defendant only on the ground that she has failed to prove that she was the resident of Haripur Town, where the disputed property is situate. The two Courts below have not said a word about the other ingredients of clause (d) which were required to be proved in the case for claiming exemption under the law. In view of this failure and in view of the failure of the learned lower appellate Court to notice the important piece of evidence on the record in the form of the statement of the petitioner-defendant, it is necessary that the entire evidence produced by the parties in respect of this issue be re- appraised.
17. The petitioner-defendant in her statement, recorded on Commission on 1-7-1975, has categorically stated that the disputed house was purchased by her for her occupation. She has also said that she does not own any house or vacant site for constructing a house thereon in Haripur where she is residing for the last 25 years -and where she intends to reside in future. She has said that the area of the disputed house was about 5 or 6 marlas. She was cross-examined at length, but not regarding the fact which she had stated on solemn affirmation that the disputed house was purchased by her for her occupation. The legal position is well settled that if a witness is not questioned on a particular point in cross-examination, then the presumption is that such point or the portion of the statement is accepted by the opposite party. On this point, I would refer to PLD 1967 Lah. 1138, PLD 1969 Pesh. 118 and PLD 1980 Pesh. 365. One of the ingredients of clause (d) .
Of section 5 of the N: W. F. P. Pre-emption Act, that the disputed house was purchased by the petitioner-defendant for her own occupation, therefore, stands proved.
18. Coming now to the other ingredients of the said clause, there is sufficient evidence on the record to show that the area of the disputed house is less than 10 marlas. The statement of the petitioner-defendant in this regard was supported by the statement of D. W. Muhammad Rafiq, who on cross-examination has stated that, the area of the disputed house might be about 5 marlas. P. W. Abdus Salam, respondent-plaintiff, has also admitted in his cross-examination that the area of the suit property is 6 or 7 marlas. The Commissioner, who was appointed to assess the value of the suit house, has also reported that the area of the disputed house was 8 marlas. In view of the material brought on record it has been established that the disputed house measures less than 10 marlas.
19. The third ingredient, as mentioned in clause (d) of section 5 of the N: W. F. P. Pre-emption Act, that the petitioner-defendant neither owned a house nor a vacant site measuring more than 5 marlas in Haripur Town has been proved on the record. On this point the statement of the petitioner-- defendant was supported by her witness D. W. Nazir Ahmad and the statement of Abdus Salam respondent-plaintiff.
20. The fourth ingredient of clause (d) of section 5 aforesaid, whether the petitioner-defendant was the resident of Haripur Town, has been held by the two Courts below to be non-existing. The finding of the two Courts below on this point is that the petitioner-defendant is the resident of village Mehlum. The petitioner-defendant, appearing as her own witness, has said that she was living in Haripur Town for the last 25 years and intended to live in Haripur in future. It has come in the evidence that the petitioner-- defendant is a married woman having her husband, Feroz Din by name, who runs a sweetmeat shop in main bazar, Haripur. The said Feroz Din owns a residential house in Haripur and the petitioner-defendant is at present residing with her husband, as stated by D. W. Nazir Ahmad in the concluding portion of his cross-examination. P. W. Abdus Salam, respondent-plaintiff, has also admitted in his cross-examination that the petitioner-defendant is residing in Mohallah Soha with her husband, who, according to his examination-in-chief, runs a sweetmeat shop in main bazar, Haripur. No doubt, the petitioner-defendant prior to her marriage used to live with her father in village Mehlum but now, as is proved from the evidence brought on the record, she is living in Haripur Town with her husband, who runs a sweetmeat shop in main bazar, Haripur. It is, therefore, proved on the record that the petitioner-defendant, who has purchased the disputed house, was permanently living in Haripur Town, where the disputed property is situate. She has come to stay here with her husband who runs a sweet--meat shop in Haripur Town. There is, there, a strong and natural pre--sumption in her favour that she has abandoned her previous residence in village Mehluni after her marriage. The authorities produced by the learned counsel for the respondents, reported as PLD 1964 Pesh. 140 and PLD 1974 Pesh. 63, are, therefore, not applicable to the facts of the case.
21. The above discussion would lead to the conclusion that on the record it is proved that the sale in question was exempt from pre-emption under clause (d) of section 5 of the N.-W. F. P. Pre-emption Act. The two Courts below by misreading the evidence brought on the record have arrived at incorrect conclusion which has resulted in grave injustice.
22. Having come to the conclusion that the two Courts below have misread the evidence brought on the record, the arguments advanced by the learned counsel for the respondents that the concurrent findings of fact arrived at by the two Courts below cannot be disturbed in revision are without substance. The authorities reported as PLD 1979 B J 31, PLD 1960 Dacca 884 and PLD 1979 Kar. 488, referred to by the learned counsel for the respondents in, his arguments, are distinguishable, for in all those cases the High Courts had come to the conclusion that there had been proper appraisal of evidence by the Courts below, which is not the case here. In the case in hand, I have come to the conclusion that the evidence on the record has been misread by the two Courts below. Where the misreading of evidence is established, the High Court is not only competent but is duty bound to interfere with the finding of the two Courts below, no matter the finding may relate to the questions of fact. In this view, I am fortified by the authorities reported as PLD 1980 Pesh. 40, PLD 1978 Lah. 994, PLD 1980 B J 29, PLD 1980 Lah. 484, PLD 1964 Kar. 549, PLD 1974 SC22and1980SCMR760.
23. In the result, accepting this revision petition, I hereby set aside the judgments and decrees of the two Courts below and dismiss the plaintiffs' suit. In view of the nature of the case and the point involved, however, I make no order as to costs.