MUHAMMAD ALAM, J.---This is civil first appeal against the judgment/order dated 10/11/2015 of the Civil Judge 1st Class Gilgit, whereby suit of the appellant/ plaintiff was dismissed.
2. Appellant/plaintiff filed Civil Suit No, 157/2002 in the trial Court for possession of suit land on the ground of exercise of right of pre-emption. Appellant/plaintiff averred in plaint that his lands are adjacent to the suit land and a channel of water passes between the suit land and the lands of appellant, which shows that appellant/plaintiff has a common right of easement with respondents Nos, 2 to 4, vendors of the suit land. Appellant/ plaintiff has further averred that respondent No,1 vendee of the suit land is resident of Kashrote, therefore, appellant/plaintiff had a prior right to purchase the suit land. Respondent No,5 is the person, through whom, respondent No,1 purchased the suit land from respondents Nos,2 to 4. The impugned sale between respondents was effected illegally, without affording any chance to the appellant for purchasing the same. Respondents contested the suit and pleaded that before purchase of suit land respondents Nos,2 to 4 approached appellant/plaintiff for purchase of the same and prior the impugned sale said respondents sold some other land adjacent to the suit land, but appellant did not raise any objection on said sale, therefore, his right of pre-emption has ceased.
3. Appellant filed appeal in hand before the District Court on 05/12/2015, 01-04-2016 Appellant Mr. Sharif Ahmad Advocate in person present. Respondents through counsel Mr. Manzoor Ahmad Advocate present.
During course of arguments transpires that as per para-3 of plaint, market value of subject matter has been mentioned Rs, 50000/- per Kanal and total value thereof is Rs, 400,000/-, which exceeds the peculiarly appellate jurisdiction of this Court, therefore, the instant appeal is hereby returned to the counsel for the appellant to present it before The Court of competent jurisdiction.
Appeal disposed of accordingly. File after due completion be consigned to record.
Announced 01/04/2016 Sd/- Additional District Judge Gilgit.
Appellant presented the appeal on 01/04/2016 in this Court. Appellant/plaintiff has filed a petition for condonation of delay (C.M. No, 53/16) with the said appeal. Respondents contested the appeal.
4. We have heard learned counsel for parties on the petition for condonation of delay. Obviously, the delay in filing the appeal in this Court is because of continuing proceedings on the appeal by the first appellate Court and in our opinion, neither of the parties be suffer from any mistake of any Court. We allow the said petition and delay in filing appeal is condoned.
5. We have heard learned counsel for parties and have gone through the material available on file.
The case in hand has its own very peculiar circumstances. An admitted fact, very important to note is that, respondents Nos, 2 to 5 neither filed any written statement nor have produced any witness etc. Learned trial Court has passed an ex-parte decree against respondents Nos, 2 to 5 on 16/05/2005. It is also an admitted fact that learned trial Court passed an order on 05/03/2011 and feeling aggrieved from the same an appeal C.F.A. No 12/2011 was filed. The then learned District Court accepted the said appeal. In view of the orders of the then appellate Court on C.F.A. No, 12/2011, the suit of the appellant/plaintiff is within time, therefore, findings of the learned trial Court on the question of limitation of suit (Issue No,10) are wrong.
6. Yet another aspect of the case is that, admittedly suit land is situated in Baseen Gilgit and appellant/plaintiff is resident of the said village, while respondent No,1, the only contesting respondent is resident of Kashrote, which is a village or Muhallah at least at the distance of 4 or 5 kilometers from Baseen. So, the legal statu's of the appellant/plaintiff is admitted, while that of respondent No, 1 is bound to establish the impugned sale is correct. We do not find any evidence in proof of correctness of the impugned sale.
7. Now we are turning to the findings of the trial Court on different issues. Issues Nos, 3 and 4 are important issues of the case and learned trial Court has given its findings on the said two issues against the appellant/plaintiff. While giving said findings, learned trial Court did not refer to any evidence of the parties. In para No, 4 of the written statement, respondent No,1 has admitted the adjacency of the suit land with the lands of the appellant. In his statement recorded on 22/09/2015, said defendant has admitted that appellant/ plaintiff is passing through suit land. In our opinion, the said parts of the written statement of respondent/defendant No,1 and his statement are sufficient to hold that appellant has a prior right of purchase of suit land as compared to respondent/ defendant No,
1. Learned trial Court has placed burden of proof of Issues Nos, 5 to 8 on respondent No,1 /defendant as rest of defendants/defendants have been proceeded ex-parte vide order sheet dated 16/05/2005. Respondent No,1 did not press issue No,5. Findings of the learned trial Court on issues Nos, 6 to 8 are based on mere conjectures. Learned trial Court has allowed respondent No,5/defendant No,5 to be examined without setting aside ex-parte proceedings against him dated 16/05/2005. We do not find any evidence of respondent No,1 in proof of issues Nos, 6 to 7. As to limitation of the suit, we have already observed that the trial Court has no power to pass any remarks regarding the said question. So, we set aside findings of the learned trial Court on issues Nos, 6 to 8.
8. Result is that, appellant has established his case and is entitled to the decree prayed for. We therefore, allow this appeal, set aside impugned order and suit of appellant/plaintiff decreed throughout. Respondent No,1 to bear costs. This file be consigned to record.