Muhammad Nasim, J. The titled appeal, by leave of the Court, has been directed against the judgment and decree dated 25.08.2020, passed by the High Court in Civil Appeal No. 87 of 2011.
2. The facts forming the background of the captioned appeal are that the plaintiff, Raja Muhammad Irshad, the predecessor-in-interest of the respondents, herein, filed an amended suit for declaration-cum-possession on the basis of right of prior purchase and for cancellation of the judgment and decree dated 20.01.2009, in the Court of learned Civil Judge Dhirkot, alleging therein, that the land comprising Khewal No. 18, khasra No. 1310, measuring 16 kanal, 17 maria, situated in village Dhirkot, was in the ownership and possession of the plaintiff as a result of the family partition. It was alleged that the land adjacent to the suit land comprising Khasra No. 2007/1080, measuring 9 kanal, 3 malra, was in the ownership of the defendant/vendor, Manzoor Ahmed Khan, out of which he sold the land measuring 1 kanal to the real-defendants in lieu of Rs. 3,50,000/-, vide sale-deed dated 07.06.2007. It was claimed that the vendees belong to a different village named as Dannah, whereas, the plaintiff has got the right of prior purchase being shafi khalit and shaft jar.
It was further claimed that the defendant/vendor without any information,' without arraying the plaintiff as party and for depriving him of his right of pre-emption, has obtained the decree from the learned Civil Judge Dhirkot on 20.01.2009. fraudulently, which is liable to be cancelled being contrary to law. The suit was contested by the other side by filing written statement, whereby, the claim of the plaintiff was refuted and craved for dismissal of the suit. After necessary proceedings, the trial Court decreed the suit while setting aside the judgment and decree dated 20.01.2009 and ordered the plaintiff to deposit the decretal amount worth Rs. 3,67,937/-within a period of one month, vide judgment and decree dated 30.09.2010. Feeling aggrieved, the defendants filed an appeal before the Additional District Judge Dhirkot which was dismissed vide judgment and decree dated 12.03.2011. The judgment and decree of the learned Additional District Judge was further assailed by the defendant/respondents, herein, before the High Court by filing appeal on 07.06.2011. The learned High Court after hearing the parties has also dismissed the appeal vide impugned judgment and decree dated 25.08.2020.
3. Ch. Shoukat Aziz, the learned Advocate representing the appellants submitted that the judgments of the Courts below including the impugned judgment passed by the learned High Court are illegal and against the record of the case. He further submitted that the vendor did not receive the consideration amount and the sale was not completed. Therefore, right of prior purchase could not be exercised but this important aspect of the case has not been considered by the Courts below. He further submitted that the subject land measuring 1 kanal was not bifurcated from the whole land owned by the vendor measuring 9 kanal, 3 marla, and the plaintiff was unable to point out that which portion of the land was sold to vendees. He added that the plaintiff is not a co-sharer as his land is not adjacent to the land of the vendor rather the subject land is surrounded by the land owned by the vendor. The sale-deed dated 07.06.2007 was cancelled by the learned Civil Judge Dhirkot vide judgment and decree dated 20.01.2009, hence, the suit filed by the plaintiff for right of prior purchase had become infructuous. He further added that in such state of affairs, the plaintiff failed to prove his preferential right of purchase, hence, the decree of prior purchase could not be granted but the learned Courts below did not appreciate the facts as well as the record in its true perspective and reached an erroneous conclusion which is liable to be set at naught. In support of his submissions, the learned counsel referred to and relied upon the cases reported as Rehmat Ali through Legal Representatives vs. Muhammad Younas & others (PLD 2014 SC (AJ&K) 680), Jawad Hussain vs. Islah High School, Chiniot (2015 MLD 976] and Muhammad Malik vs. Ch. Jawed Yaqoob Batalvi and another [2002 SCR 47]. Lastly, the learned Advocate, prayed for acceptance of appeal.
4. Conversely, Mr. Mr. Muhammad Yaqoob Khan Mughal, the learned Advocate representing the respondents, defended the impugned judgments on all counts and submitted that concurrent findings of facts have been recorded by the Courts below which are immune from interference by this Court as no misreading or non-reading of the record has been pointed out by the appellants.
He further submitted that during the course of cross-examination the vendor himself admitted that the vendees are not co-sharers in the village. He sold the land to them and received the consideration amount, thus, it cannot be said that the sale was not completed and right of prior purchase in favour of the plaintiff does not arise. The learned counsel added that the decree dated 20.01.2009 has rightly been set aside by the Courts below, being collusive and issued during pendency of the suit for right of prior purchase and any decree granted or transaction made during pendency of the suit of prior purchase, cannot sustain under the statutory law as well as various pronouncements of the superior Courts. In support of his submissions, the learned counsel referred to and relied upon the cases reported as Ahmad Sher vs. Muhammad Hayat [PLD 2006 SC 448]. Falak Sher vs Muhammad Rashid & another [PLJ 1982 Lahore 272], Mst. Bibi Mehr Jana vs. Sultan Muhammad [NLR 1985 Civil 363] and Muhammad Boota etc. vs. Additional District Judge. Gujranwala, etc. [NLR 2006 Civil 04] and prayed for dismissal of appeal.
6. We have considered the arguments advanced by the learned counsel for the parties and gone through the record made available along with the impugned judgment. A perusal of the record reveals that Raja Muhammad Irshad, the predecessor-in-interest of the respondents, herein, filed a suit for possession on the basis of right of prior purchase, alleging therein, that the land comprising khewat No. 18, Khasra No. 1310, measuring 16 kanal, 17 marla, situated in village Dhirkot, was in the ownership and possession of the plaintiff as a result of the family partition. It was alleged that the land adjacent to the suit land comprising khasra No. 2007/1080, measuring 9 kanal, 3 marla, was in the ownership of the defendant/vendor, Manzoor Ahmed Khan, out of which he sold the land measuring 1 kanal to the real-defendants in lieu of Rs. 3,50,000/-, vide sale-deed dated 07.06.2007.
It was claimed that the vendees belong to a different village i.e Dannah, whereas, the plaintiff has got the right of prior purchase being shafi khalit and shafi jar. During pendency of the said suit, the vendor filed a suit for cancellation of the sale-deed dated 07.06.2007, before the Civil Judge Dhirkot and got succeeded to obtain the decree on 20.01.2009. The plaintiff, challenged the said decree by filing the amended plaint, alleging therein that the vendor without any information, without arraying the plaintiff as party and for depriving him of his right of pre-emption has obtained the decree dated 20.01.2009. fraudulently, which is liable to be cancelled being contrary to law. The suit was contested by the other side by filing written statement, whereby, the claim of the plaintiff was refuted in toto. The learned trial Court after necessary proceedings. Decreed the suit while setting aside the judgment and decree dated 20.01.2009 and ordered the plaintiff to deposit the decretal amount of Rs. 3,67,937/-within a period of one month, vide judgment and decree dated 30.09.2010.
The aforesaid judgment and decree has been maintained by both the appellate Courts below.
6. First of all we would like to attend the argument advanced by the learned counsel for the appellants that the vendor did not receive the consideration amount and sale was not completed, hence, right of prior purchase could not have been exercised by the plaintiff/respondents, herein. In rebuttal of the said argument, the learned counsel for the respondents submitted that the vendor in his cross examination himself admitted that the vendees are not co-sharers. He sold the land in question to them and received the consideration amount of Rs. 3,50,000/-. In the light of the averments made by the learned counsel for the parties we have perused the statement of the vendor, Manzoor Ahmed Khan. During the course of cross examination, he stated that: A perusal of the above would show that the vendor admitted that he sold the land to the vendees and received the consideration of sale. After filing of the suit by the plaintiff/pre-emptor he obtained the decree dated 20.01.2009, with consultation of the vendees. It was also admitted that while filing the suit for cancellation of the sale-deed dated 07.06.2007, the plaintiff pre-emptor has deliberately not been arrayed as party. Thus, the argument of the learned counsel for the appellants is ill-founded which is hereby repelled.
8. So far as, the argument of the learned counsel for the appellants that the sale-deed dated 07.06.2007, on the basis of which the plaintiff filed the suit for pre-emption, was cancelled/set aside by the learned Civil Judge Dhirkot, vide judgment and decree dated 20.01.2009, hence, the suit filed by the plaintiff had become infructuous, is concerned, it may be stated here, that the plaintiff predecessor-in-interest of the respondents, herein, filed the suit on the basis of right of prior purchase on 05.10.2007. During pendency of the said suit, the appellants, herein, filed the suit for cancellation of the sale deed dated 07.06.2007, without arraying the plaintiff/pre-emptor as party.
The law is well settled on the point that when a suit is filed by the pre-emptor, the subsequent suit filed by the vendor for cancellation of the sale-deed in question and the decree obtained without arraying the pre-emptor, will not defeat the right of pre-emption. In this regard the learned Advocate, representing the respondents has referred to the correct case law. For convenience, some of the precedents are reproduced here which are as follows: In the case reported as Falak Sher vs. Muhammad Rashid & another [PLJ 1982 Lahore 272], it was observed in paras 4 and 5 as under: "4. In some of the precedent cases it has been ruled that where after the filing of a pre-emption suit the vendee re-sells the land, involved in the suit, in favour of the vendor, it does not defeat the right of pre-emption claimed in the suit. Some of these cases have been reported as Muzaffar Khan v.
Muhammad Khan etc. (38 PLR 224). Imamt v. Allah Diya and others (40 IC 767), Sukha and others v. Atura Mal and another (PLR 1908 Lahore 165) and Pal Singh and another v Jamun (49 IC 159) and Muhammad Khan and another v. Zir Mir Khan and 2 others (1981 CLC 129 (Lahore).
Collusion between the vendor and vendee in the instant case, which had resulted in the declaratory decree in question, was also aimed at giving back the disputed land to the vendor with a view to defeating the pre-emption suit brought by the respondent. The decree is, therefore, on no better footing than the re-sale of land by vendee in favour of the vendor. The disputed decree would, therefore, not adversely affect the suit for pre-emption.
6. Resultantly, I find no merit in the plea raised by learned counsel for the appellant that the Court seized of the pre-emption suit had no jurisdiction to hold that the declaratory decree which was collusively obtained by the appellant from another Court, was ineffective qua the suit for the pee- emption."
Same like, in the case reported as Ahmad Sher vs. Muhammad Hayat [PLD 2006 Supreme Court 448) the learned Apex Court of Pakistan affirmed the same view in para 10 of the judgment as under: "10. Last, it was contended by the learned counsel for the petitioners that, by another party. Another suit was instituted challenging the sale in question which stood decreed on 2.1.1978. That such decree having the effect of cancelling the disputed sale, no pre-emption suit could exist nor could it be decreed. We have given our anxious thought to this aspect as well and believe firstly, that the present pre-emptor was not a party to such suit and moreover, it was obtained on 2-1-1978 on the conceding written statement of defendant. Being a consent decree, it was no more than a mere agreement between the parties regardless of the judicial imprimatur that it contained. Such agreement without the pre-emptor being a party to it, is not binding upon him. The learned High Court was, therefore, justified in holding that such consent decree was collusion between the parties thereto to damage the already pending suit for pre-emption. Such suit could not have been filed in the absence of the present vendees and if such vendees were a party thereto, they could well have informed about the pendency of pre-emption suit of Muhammad Hayat."
Likewise, in the case reported as Mst. Bibi Mehr Jana vs. Sultan Muhammad [NLR 1985 Civil 363] it was held as under: "In this case too even if the declaratory suit filed by Md. Bibi Mehr Jana against Sultan Muhammad Khan is decreed in her favour, cautious of the fact that the defendant-husband had compromised, even in that case the pre-emption suit filed by Muhammad Akhya cannot be defeated because under Section 17 (2) any improvement otherwise than through inheritance or succession made in the status of a vendee-defendant after the institution of a suit for pre-emption shall not affect the rights of the pre-emptor plaintiff in such suit."
Similarly, in the case reported Muhammad Boota etc. vs. Additional District Judge, Gujranwala, Etc. [NLR 2006 Civil 4], in the identical circumstances, while referring to some other case law, whereby, the view has been affirmed by the superior Courts of the Country, it was observed as under: "11. I have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, appended with both the petitions. Sale of land measuring 56 kanals, 16 marlas by its owner Chanan in favour of Zafarullah is the real cause of dispute but the sale-deed executed on 18.3.1974 revealed that it was witnessed by Mst. Rasulan Bibi and she after giving her consent to this sale, could not turn back to challenge the same sale through a declaratory suit filed on 20.5.4978. Parties to this suit were well aware of pendency of pre-emption A suits, but they out of malice conceded her suit resulting in consent decree on 23.10.1978. Both the pre-emption suits had been filed in March, 1975 and were pending awaiting conclusion of evidence of the parties when suit by Mst. Rasulan Bibi was conceded and decreed. Record revealed that suit by Mst. Rasulan Bibi was conceded by Zafarullah vendee and Chanan vendor was not represented by anybody. This decree without impleading the pre-emptors. Pending their suits, had no legal value because Mst.
Rasulan Bibi in her application under Order I, rule 10, CPC did not detail how and when she came to know about the suits and absence of such assertion created a presumption that she was aware of those suits. In these circumstances, principle of lis pendens, as enunciated by Section 52 of the Transfer of Property Act, 1882 and affirmed consistently by superior judiciary of this country in the cases of Munir Hussain v. Muhammad Shafi and another (1981 CLC 1712), Messrs Aman Enterprises, Kotli Loharan, Sialkot v. Messrs Rahim Industries Pakistan Ltd. and another (PLD 1988 Lahore 717) and Muhammad Yousaf and others v. Muhammad Younas and others (1995 CLC 1780). Was fully attracted and applied invalidating the decree in favour of Mat. Rasulan Bibi dated 23.10.1978 and reducing it to a nullity in the eye of law."
In view of the above, the argument of the learned Advocate, representing the appellants that after cancellation of the sale-deed in question, the suit for pre-emption had become infructuous, has no substance. In this regard, the case law referred to by the learned Advocate, representing the appellants, having distinguishable facts, is not applicable to the case in hand.
8. It may be observed here that the learned trial Court in the suit filed by the plaintiff/predecessor- in-interest of the respondents, herein, held that the plaintiff is entitled to the decree of declaration- cum-possession on the ground of right of prior purchase and cancellation of the decree dated 20.01.2009 being collusive as well as c obtained on the basis of fraud. These findings of the trial Court have been affirmed by the first and the second appellate Courts. A perusal of the judgments recorded by the Courts below leads us to the conclusion that the evidence brought on the record has properly been appreciated and no misreading/non-reading of the same has been committed.
It is well settled principle of law that concurrent findings of facts recorded by the trial Court and the first appellate Court cannot be disturbed by this Court. Particularly so, when the same are affirmed by the High Court until and unless gross misreading and non-reading of the record is pointed out.
As no misreading or non-reading of the evidence/record is shown to have been committed, therefore, interference by this Court in the concurrent findings of facts recorded by the Courts below is not required. 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."
An identical proposition came under consideration of this Court in the case reported as Farooq Ahmed vs. Capt. (R) Munshi Khan & others [2004 SCR 510], wherein, it was observed as under: ".... So the question of fact concurrently decided and upheld by the High Court cannot be set aside by this Court even if a different view might be possible. Since, no point of legal importance has been made out by the learned counsel for the petitioner, therefore, the petition for leave to appeal stands dismissed in limine."
Similarly, in another case reported as Mst Sharifa Begum & 4 others versus Ali Afsar Khan [2006 SCR 191], 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."
In view of the above, it is concluded that the findings recorded by the trial Court are apt and in accordance with law and the learned 1st and the 2nd appellate Courts have committed no illegality while affirming the same. No misreading and non-reading of the record is E pointed out by the appellants, hence, the interference by this Court is not required.
9. An application has been filed by Shehnaz Akhtar D/o Raja Manzoor Ahmed Khan (deceased) for arraying her as party in the line of the appellants. The record reveals that the learned High Court passed the impugned judgment on 25.08.2020. The PLA/appeal was filed before this Court on 29.10.2020. Under Order XIII, Rule 3 of the Azad Jammu and Kashmir Supreme Court Rules, 1978, the limitation for filing the PIA is 60 days. The instant application has been filed after a period of more than three years, which is hopelessly time barred, therefore, the same is hereby dismissed.
The epitome of the above discussion is that finding no force in this appeal, the same is hereby dismissed. No order as to costs.