Raja Saeed Akram Khan, C.J.--This appeal by leave of the Court, filed under Article 42(12) of the Azad Jammu and Kashmir Interim Constitution, 1974 read with the relevant rules; assails the judgment of the High Court dated 31.12.2019, whereby, the appeal filed by the appellants, herein, has been dismissed.
2. The facts of the case are that the suit land bearing survey Nos. 408 and 481 measuring 37 kanal situated in village Serian, Tehsil Haveli, was in the ownership of Mst. Pachi and other co-sharers. She executed a general power of attorney on 18.11.2000 in favour of her husband, Appellant No. 1. On the basis of said power of attorney, Appellant No. 1 gifted the aforesaid land to his son (Appellant No. 2) vide gift-deed dated 25.01.2001. The plaintiff-respondent, Lal Din, niece a suit for declaration and possession of the aforesaid property on the ground that he is a co-sharer in the suit property and has got a preferential right of purchase against the vendee. The defendant-appellants just to defeat the plaintiffs right of prior purchase have labelled the sale-deed as gift-deed. The defendant-appellants contested the suit by filing a written statement on the ground that the suit is baseless. The plaintiff was in the knowledge of the transaction. During the pendency of the suit, the land was transferred by the appellants to Ch. Noor Hussain through an agreement to sell dated 06.10.2001. The plaintiff-respondent challenged the said agreement by filing an amended plaint.
Ch. Noor Hussain not only objected to the suit by filing written statement but also filed a cross suit for specific performance of the agreement to sell dated 06.10.2001. The learned trial Court vide judgment and decree dated 13.06.2009 dismissed both the suits. It is pertinent to mention here that another suit filed by the respondent challenging the gift deed dated 25.01.2001 as well as Mutation Nos. 85, 105 and 108 was also rejected by the trial Court vide order dated 13.06.2009. The respondent filed two separate appeals before the District Judge, Haveli which were accepted and the case was remanded to the trial Court for fresh hearing and disposal. After remand of the case, the learned trial Court decreed the suit in favour of the plaintiff-respondent on the basis of right of prior purchase, whereas, the other suit regarding entries in the revenue record was dismissed vide judgment and decree dated 29.11.2013. The said judgment and decree of the trial Court has been affirmed by both the Courts below, hence, this appeal by leave of the Court.
3. Sardar M. R. Khan, Advocate, the learned counsel appearing on behalf of the appellants stated that Mst. Pachi was wife of Appellant No. 1 and step mother of Appellant No. 2. Her land was gifted by Appellant No. 1 to Appellant No. 2 on the basis of valid power of attorney, hence, there is no ambiguity and the gift-deed cannot be treated as sale-deed under the mentioned circumstances but the Courts below have not properly considered this aspect of the matter. He further argued the through the amended written statement, the averments of the plaintiff made in paragraph 2 of the plaint were categorically denied, therefore, on this point the observations recorded by the High Court are against the record that the defendants have admitted the stance of the plaintiff. The stance of the respondent that the disputed land was actually purchased by Appellant No. 1 from Mst. Pachi against a consideration of Rs. 20,000/- is also incorrect as she was the wedded wife of Appellant No. 1 and there was no need to purchase the land from her. He further submitted that the payment of Rs. 20,000/- to Mst. Pachi is also not proved from the reliable evidence because one of the witnesses cited by the plaintiff-respondent filed an affidavit before the High Court that he has not got recorded any statement regarding the payment of Rs. 20,000/- to Mst. Pachi. He finally prayed for acceptance of this appeal and setting aside the judgments of the Courts below.
4. Conversely, Ch. Muhammad Ismail, Advocate, the learned counsel representing the respondent submitted that all the Courts below have recorded concurrent findings against the appellants and according to the settled principle of law such like findings cannot be interfered with by this Court.
Even otherwise, the appellants have admitted the gift-deed as sale in Para No. 2 of their written statement. The alleged amendment in the written statement has been made without permission of the Court. He further added that in earlier round of litigation the learned District Judge, Haveli remanded the case to the trial Court while recording specific findings that the defendant- appellants have admitted the stance taken by the plaintiff in their written statement, hence, no proof in this regard is required, These findings of the District Judge have not been challenged by the appellants, hence, now they cannot be allowed to adopt a different version. He further submitted that the Nikah of Mst. Pachi with Appellant No. 1 was solemnized on 07.10.2001, whereas, she executed the power of attorney on 18.11.2000 in favour of Appellant No. 1 who gifted the land to his son on 25.01.2001, thus, it is clear that at the time of execution of the gift deed the appellant and his son had no blood relation with Mst. Pachi. In the given circumstances, the Courts below have rightly passed the impugned judgments and no interference by this Court is warranted.
5. We have heard the learned counsel for the parties and gone through the record. As per the record Mst. Pachi, owner of the suit land, executed a general power of attorney in favour of Appellant No. 1, who on the basis of said power of attorney alienated the land to his son through gift-deed. The pre-emptor, respondent, approached the Civil Court with the claim that the aforesaid transaction was sale and just to defeat his right of pre-emption the same has been labelled as gift-deed. The suit decreed by the trial Court and both the appellate Courts affirmed the decree of the trial Court.
6. In the light of the arguments of learned counsel for the parties the only proposition which is required to be resolved by us is whether the sale-deed dated 25.01.2001 was labelled as gift-deed just to defeat the respondent's right of prior purchase. In Paragraph No. 2 of the written statement filed by the appellants they admitted that". In this state of affairs, the Courts below have rightly reached to the conclusion that when the stance of the plaintiff is admitted by the defendants that the general power of attorney was received against a consideration then no further proof in this regard is required, however, despite this we have scanned the whole evidence. The plaintiffs witness Shah Muhammad deposed that: The other witness Muhammad Shafi deposed that:- This fact of payment of Rs. 20,000/ is also proved from the statement of attorney of the plaintiff. The defendant appellants failed to specifically cross-examine these important portions of statements of witnesses. Thus, it stood proved from the evidence that the general power of attorney was executed against the consideration of Rs. 20,000/- and on the basis of said power of attorney Appellant No. 1 gifted the land to his son. Obviously, a gift cannot be executed for consideration money and is always without consideration. When the payment of consideration is fully proved, the Courts below under Section 4 of the Right of Prior Purchase Act, 1993 (Bik.) were justified in holding that the disputed alienation of land was in fact a sale and just to avoid the plaintiff's right of prior purchase the same was portrayed as gift-deed. Even otherwise, it is the settled principle of law that an attorney cannot utilize the powers conferred upon him to transfer the property to himself or to his kith and kin without special and specific consent and permission of the principal.
Thus, even from this angle the impugned transaction has validly been treated as by the Courts below. Furthermore, the general power of attorney is not a document which can be sold, this fact also strengthens the claim of plaintiff that the gift was executed to defeat his right of prior purchase.
7. Yet from another angle the version of the respondent is correct that the impugned transaction was portrayed as gift because at the time of execution of alleged general power of attorney the marriage of Mst. Paachi was not solemnized. According to evidence, the Nikah was solemnized on 07.10.2001, whereas, the general power of attorney was executed on 18.11.2000 and the gift was executed on 25.01.2001, almost 8 months prior to Nikkah. Therefore, it can safely be concluded that the appellants managed the whole transaction just to defeat the respondent/right of prior purchase.
8. The learned counsel for the appellants has also argued that Muhammad Shafi, witness of the plaintiff, has filed an affidavit before the High Court wherein he has sworn that he has not got recorded his statement before the trial Court. We are afraid, this assertion of the appellants cannot be considered at this stage. The affidavit filed by him before the High Court cannot be given preference over the Court record, specially, when no such objection was raised before the trial Court.
9. Another contention of the learned counsel for the appellants is that in the amended written statement the appellants have specifically refuted the claim of the respondent. In this regard, it has rightly been pointed out by the learned counsel for the respondent that amended written statement was filed without permission of the Court hence, the same has no value in the eye of law. It appears that the amended written statement was filed under the umbrella of filing of amended plaint by the plaintiff but in our opinion the amended paint was filed just to the extent of challenging agreement: to sell dated 06.10.2001 and the defendants were supposed to file the amended written statement only to this extent.
10. It has also been rightly pointed out by the learned counsel for the respondent that in earlier round of litigation the learned District Judge specifically recorded findings on the point that the fact of execution of power of attorney against the consideration of Rs. 20,000/- is admitted by the defendants but the appellants failed to challenge the judgment of the District Judge, therefore, now they cannot be allowed to adopt a different version that the intention of using the word was otherwise.
11. Leaving aside all the aforesaid facts, this Court in a number of cases has held that the findings of facts concurrently recorded by the Courts below are immune from interference until and unless any misreading or non-reading of evidence is pointed out but in the instant case no such eventuality exists. Reliance may be placed on the case reported as Azmat Hussain Kiani and 2 others vs. Ansa Bibi & 4 others [2016 SCR 496], wherein, this Court, has observed as under: "It may be observed here that in the instant case, the concurrent findings have been recorded by the Courts below and this Court is always reluctant to substitute the findings which have been concurrently recorded by the Courts below, except there appears any misreading or non-reading of the evidence, whereas, the learned counsel for the appellants failed to point out any such misreading or non-reading of the evidence."
Similarly, in another case reported as Mst Sharifa Begum and 4 others versus Ali Afsar Khan [2006 SCR 19], this Court while dealing with such like proposition, has observed in paras 7 and 8 as under: "7. We have considered the respective arguments of the learned counsel for the parties and with their assistance have gone through the record of the case. In this case, as is rightly observed by the High Court, no misreading or non-reading of evidence was pointed out by the learned counsel for the appellants. Under Section 100, CPC the right of second appeal is available before the High Court on a question of law. On facts it can be availed only if the findings recorded by the Courts below concurrently are result of misreading or non-reading of some material evidence going to the root of the case. The learned Judge in the High Court has observed that no misreading or non-reading of evidence could be pointed out before him. However, for his own satisfaction the learned Judge looked into the entire evidence consisting of revenue record and the oral testimonies of witnesses. Even before us no such record has been placed on our file or was pointed out during the course of arguments which was misread or non-read by the Courts below.
The appellants have based their claim on a report of Patwari which according to Courts below was got prepared in absence of defendant-respondent. It was not relied as the same was directly in conflict with the revenue record prepared during the settlement and tendered by the appellants themselves. The moot point in the light of pleadings of parties was as to whether any portion of land belonging to appellants was in possession of respondent. This was a question of fact which all the Courts below have resolved against the appellants that no land belonging to the appellants was in possession of respondent.
8. This Court seldom interferes in the concurrently concluded findings of the Courts below if no misreading or non-reading of any documentary or oral evidence having bearing on the facts of case is brought in the notice of the Court. As this case lacks such proof, therefore, this appeal in view of above, having no merit, is hereby dismissed with costs."
The Courts below have recorded concurrent findings of facts against the appellants after minute appreciation of the evidence and the learned counsel for the appellants failed to point out any misreading or non-reading of evidence, thus, such like findings cannot be disturbed by us in this appeal.
For the reasons stated hereinabove, finding no force, this appeal is dismissed.