GHULAM MUSTAFA MUGHAL, J. The captioned appeal has been directed against the judgment dated 26.10.2017 passed by the learned High Court in civil appeal No, 104 of 2012.
2. The facts forming the background of the captioned appeal are that land comprising Khewet Nos, 24, 79, 91, 92 and 108 Khata Nos, 206, 598, 616, 873 to 875 and 921, total measuring 17 kanals, 14 marlas, situated in village Chahi was a common property of the plaintiff and the defendant Nos, 1 to 8. The said land was transferred by defendants No, 1 to 8 to defendants No, 9 to 10 in lieu of Rs, 9,50,000/- vide sale-deed dated 10.07.2008. Ghulam Rasool, appellant, herein, brought a suit for possession on the basis of right of prior purchase in respect of the aforesaid land in the Court of Civil Judge, Samahani on 26.07.2008. It was claimed by him that defendants No, 1 to 8 (vendors) are co-sharers in the sold land and in addition to that the plaintiff has additional right of passage etc. vis-a-vis to defendants No, 9 to 10, who have no such right. It was claimed that plaintiff has preferential right of purchase in respect of the sold proper' and the defendants have alienated the same without complying with provisions of Right of Prior Purchase Act. It was further claimed that the land in fact has been sold for Rs, 4,00,000/-, which is the market value of the said land and the consideration amount to the tune of Rs, 9,50,000/- has been entered as ostensible price in the sale-deed arbitrarily in order to defeat the preferential right of purchase of the plaintiff. The suit was contested by the respondents by filing written statement. It was claimed that the suit has been filed malafidely to harass the defendants. It was further claimed that the plaintiff has no preferential right in the said land as the defendants are co-sharers and owners in the Khewet. They also claimed that the consideration amount was fixed in accordance with the market value of the land and the stand taken by the plaintiff that sale-deed executed in lieu of Rs, 4,00,000/-, is baseless. The learned Trial Court framed issues in the light of the pleadings of the parties on 03.04.2009 and directed them to lead evidence pro and contra. At the conclusion of the proceedings, the learned Trial Court vide judgment and decree dated 12.01.2011 dismissed the suit for want of cause of action on the ground that the plaintiff and defendants are co-sharer, hence, the plaintiff has no prior right of prior purchase in respect of the said property. The appellant, herein, feeling aggrieved from the said judgment of the Trial Court challenged the same by way of appeal before the District Judge, Bhimber on 08.03.2011. The learned District Judge after hearing the parties vide judgment and decree dated 10.01.2012 accepted the appeal, set aside the judgment and decree passed by the Trial Court and granted decree of possession on the basis of right of prior purchase in favour of the appellant, therein, subject to payment of consideration amount Rs, 9,50,000/- alongwith the expenses of the sale-deed etc. Both the parties felt aggrieved from the judgment and decree dated 10.01.2012 passed by the District Judge preferred separate appeals before the Azad Jammu and Kashmir High Court. The learned High Court through the impugned consolidated judgment and decree dated 26.10.2017 dismissed the appeal filed by the appellant, herein, whereas the appeal filed on behalf of Muhammad Iqbal has been partly accepted and the judgment and decree passed by the learned District Judge dated 10.01.2012 was set aside to the extent of half suit measuring 8 kanals, 12 marlas. Ghulam Rasool, appellant, herein, has assailed the aforesaid judgment through the captioned appeal.
3. Mr. Abdul Razzaq Chaudhary, the learned Advocate appearing for the appellant vehemently argued that the judgment passed by the learned High Court is erroneous, illegal and against the record. He further argued that the learned High Court has wrongly declared the parties as co- sharer and are entitled to share the property in view of Section 20 of the pre-emption Act. He argued that the fact of the matter is that the suit was filed before the Trial Court on 26.07.2008 when the Right of Prior Purchase Act, 1993 was enforced and even the decree was passed by the learned Civil Judge, Samahani on 12.01.2011 before enforcement of the Pre-emption Act, 2016. The learned Advocate argued that the Azad Jammu and Kashmir Pre-emption Act, 2016 was enforced in the Azad Jammu and Kashmir on 09.02.2016 and has been given effect from 20.07.2015, therefore, it has no relevancy for deciding the case in hand. The learned Advocate further argued that a vendee and a pre-emptor has to maintain his superior right of pre-emption or purchase at the three stages i,e, (i) at the time of sale, (ii) at the time of filing the suit and (iii) at the time of passing the first decree. He submitted that in the present case the vendees were not co-sharer at the time of sale of the property, hence, they have no preferential right of purchase vis-a-vis to pre- emptor. In support of his submissions the learned Advocate has placed reliance on the case reported as "Mehmood Hussain v. Ejaz Hussain Shah and another "(1992 SCR 13) and "Muhammad Ilyas v. Ali Asghar and 7 others" (2003 SCR 520).
4. Conversely, Raja Khalid Mehmood Khan, the learned Advocate appearing for the respondents forcefully argued that as the vendees and vendors are co-sharer, hence, the pre-emptor has no right of prior purchase vis-a-vis to them. The learned Advocate argued that the pre-emptor has filed appeal before the Azad Jammu and Kashmir High Court to the extent of consideration amount, which has rightly been dismissed.
5. We have heard the learned Advocate representing the parties and have gone through the record of the case. It may be stated that the land in dispute, in this case, was sold vide sale-deed dated 10.07.2008 and the suit for pre-emption was filed on 26.07.2008 by the appellant, herein, which after necessary proceedings was dismissed by the learned Trial Court vide judgment dated 12.01.2011. The appeal was filed against the judgment and decreed dated 12.01.2011 before the learned District Judge, Samahani on 08.03.2011, which was accepted on 10.01.2012. Both the parties went in appeal before the Azad Jammu and Kashmir High Court against the judgment passed by the District Judge, Bhimber on 10.01.2012. Muhammad lqbal and another, respondents, herein, filed appeal against the judgment passed by the District Judge before the High Court on the ground that no decree of possession on the basis of right of Prior Purchase Act can be passed because the parties are co-sharers and the learned Trial Court has rightly dismissed the suit, whereas, Ghulam Rasool, appellant, herein, has filed the appeal to the extent of consideration amount only. The learned High Court attended the controversy in paragraphs No, 9 and 10 of the impugned judgment as under:--
6. A careful perusal of the record reveals that appellant Muhammad Iqbal and others, according to copy of Jamabandi `Exh. `PB', copy of Jamabandi, pertaining to year 1996-97 Exh. `DC', Mutation No, 1342 and Exh. 'DB', are co-sharers in the suit land, so, they are Shareek Khewat as well. For complete success of the suit for pre-emption, it is necessary for the plaintiff to hold a superior category then the purchaser. When, both the parties, i,e, pre-emption and the vendee fall in the same category, under Section 20 of the. Right of Prior Purchase Act, 1993, the disputed land/property shall be divided between both the parties, equally. For proper perception of law, the relevant provision is reproduced, which reads as under:-- "20. Where the pre-emptor and the vendee equally entitled.-- Where the pre-emption and the vendee fall in the same class of pre-emptors and have equal rights of pre-emption, the property shall be shared by them, equally."
10. In view of the above-quoted provision of law, both the learned Courts below have erred in law; the Trial Court by dismissing the suit in toto and the learned 1st Appellate Court, by granting the decree for possession on the basis of right of prior purchase, for the whole suit property/land. The findings of both the Courts below, being bad in law, are not sustainable, therefore, are liable to be struck down, however, it is found that consideration amount of the whole land amounting to Rs, 9,50,000/- is fully proved. The plaintiff has not been able to prove that the land was alienated for Rs, 4,00,000/-. It is not necessary that the whole amount should be paid at the time of registration of the sale-deed. It is on record that Rs, 5,50,000/-were paid to the vendor before the execution of the deed at home. So, to this extent findings of the learned Court below are correct."
6. After hearing the learned counsel for the parties and going through the record of the case, we are of the view that the above reproduced conclusion reached at by the learned High Court was not proper and legal. It may be observed that the learned High Court has wrongly dismissed Appeal No, 104 of 2012 filed by Muhammad Iqbal and another against the judgment passed by the learned District Judge, Bhimber on 10.01.2012. The learned Trial Court has dismissed the suit of pre- emption filed on behalf of the present appellant vide judgment dated 12.01.2011 for want of cause of action and proof. It was held by the learned Trial Court that the plaintiff has no preferential right vis-a-vis to vendees because both the parties are co-sharers. However, on appeal the learned District Judge has erroneously and against the record come to the conclusion that the pre-emptor has preferential right of purchase and the defendants/vendees are not co-sharers. The findings recorded by the learned District Judge to this extent are against the record, hence, are recalled. To this extent, when the learned High Court has also observed that the parties are co-sharer, we are of the view that after this observation the judgment passed by the District Judge was liable to be set aside. A perusal of the Exh. "DB", the copy of the Jamabandi pertaining to year 1996-97, reveals that Bashir Ahmed Khan son of Allah Ditta, the father of the vendees is recorded as owner to the extent of half of the property. The pre-emptor's father namely Akbar Shah is also recorded as owner on the basis of tenancy. The same entry is recorded in other Khewat, therefore, the conclusion reached at by the learned Civil Judge, Samahani regarding the status of the vendees and the vendor vis--vis to pre-emptor was based on proper appreciation of the record. The conclusion reached at by the learned District Judge was against the record, hence, cannot be approved. The learned District Judge mainly relied upon the oral evidence. When it was proved that pre-emptor as well as the vendees are co-sharers on the basis of documentary evidence, then the oral evidence cannot be given preference over the documentary evidence and on the basis of oral evidence the findings recorded by the learned Trial Court could not be reversed. Though, the respondents, herein, have not challenged the judgment and decree passed by the learned High Court through cross appeal, but this Court has inherent powers under Order XLIII, rules 4 and 5 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, and can pass any judgment and order which ought to have been passed or made by the subordinate Courts. The provisions of Rules 4 and 5 of Order XLIII can be reproduced as under for ready reference:-- "4. The Court shall have power to pass any decree and make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree, and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.
5. Nothing in these Rules shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
In view of the above provisions notwithstanding the fact that the respondents have not challenged the impugned judgment of the learned High Court, this Court cannot keep mum and sit as an ideal spectator despite noticing Illegality in the impugned judgment. A judgment which is a nullity in the eye of law, is liable to be corrected, hence, the impugned judgment of the High Court is set aside.
Resultantly, the appeal filed before the High Court by the respondents is accepted and the judgment dated 10.01.2012 recorded by the District Judge is hereby recalled. Resultantly, the judgment and decree passed by the Trial Court stands restored.