1. ' By this order I propose to dispose of all the three appeals entitled above as the same arise out of the consolidated judgment of the District Judge, Poonch and inv-lve common point for determinations. The brief facts forming background to the above appeals are that land bearing Survey Nos, 705, 706, situate in village Hornamaira, Tehsil Rawalakot belonged to Qasim Ali, All Hussain, Mst. Safira Jan and Mst. Begum Jan who alienated their respective shares to Sardar Muhammad Afsar Khan whose legal representatives are appellants 1 to 12 in Appeal No,. 24, and Sub. Maj. Feroze Khan, defendant-appellant, through registered sale-deed executed on 7-5-1965, 10-5-1965 and 6-7-1965. One Muhammad Sharif and Muhammad Shafi, respondents brought three separate suits to pre-empt the above sales, in the Court of Sub-Judge, Rawalakot, on the ground that they being co-sharers and collaterals of the vendors had prior right of purchase of the suit land. The vendees contested all the suits and in their written statements, among others, took the plea that the pre-emptors had waived their right of pre-emption by executing an agreement deed on 4-2-1965 by which they undertook not to purchase the suit land and to pre-empt the sales.
2. Muhammad Sharif plaintiff-pre-emptor, during the trial, withdrew his suits. The trial Court after framing necessary issues and recording evidence adduced by the parties in support thereof, decreed all the three suits vide its consolidated judgment dated 30-4-1978 as it came to the conclusion that the pre-emptor in the said suits had a prior right of purchase of the suit land and that the agreement deed purporting to have been executed by the pre-emptors and evidencing waiver of their right of pre-emption, was a fake and forged document. The appeals against the judgments and decrees of the trial Court were dismissed by the District Judge, Poonch by agreeing with the finding of the trial Court, vide his judgment dated 1-1-198J and hence the present second appeals.
3. ' I have heard the learned counsel for the parties and also perused the relevant record. In all the above appeals the only point urged by the learned counsel for the appellants was that both the Courts below have erred in holding the document Exh. D. A. To be fictitious and forged one. In this connection, it has been contended that the execution of the above agreement deed by the pre- emptors-respondents was fully proved by the statements of witnesses who had attested the same.
4. It is further contended that since the aforementioned document goes to prove that the pre- emptors had waived their right of pre-emption, the decrees passed by the Courts below are liable to be set aside and the suits of the plaintiff-respondents deserve dismissal. On the other hand, the learned counsel for the respondents has argued that the trial Court as well as first appellate Court were perfectly justified in giving finding that the document Exh. D. A. Produced by the appellants in support of their plea that the pre-emptor in the suits had undertaken not to purchase the suit land and to pre-empt the sale transactions, is not a genuine document executed by the respondents.
5. After giving my due consideration to the argument addressed at the bar and taking into account the facts and circumstances of the case, I am of the view that the finding of the Courts below regarding document Exh. D. A being fake and forged one, is based on sound and cogent reasons and cannot be disturbed in second appeal. The above finding being the finding, of fact cannot be made the subject of second appeal unless, of course, it is found that the same is based on no evidence or is the result of misreading or non-reading of evidence on record. None of the aforesaid defects is found in the finding of the Courts below given regarding the genuineness or otherwise of the document Exh. D, A. On which the plea of waiver of right of preemption by the pre-emptors rests, in view of which interference in the aforesaid finding of fact may be called for by this Court.
6. Both the Courts below have thoroughly examined and discussed the evidence produced by the appellant to prove the execution of document Exh. D. A. And after giving sound reasons have disbelieved the statements of the witnesses produced by the appellants alleged to have witnessed the execution of the said document. A trial Judge is always in a better position to assess the credibility of evidence given by the witnesses of a party to the case as it has the opportunity of watching his demeanour while recording his evidence and such assessment should not be lightly interfered with or disturbed by the appellate Court. In the present case, in my opinion also, the attesting witnesses of the document Exh. D. A. Have rightly been disbelieved. Both the Courts below have rightly pointed out certain discrepancies appearing in the evidence of the attesting witnesses of the document under consideration and other circumstances which are pointer to the fact that the document Exh. D. A. Has not been executed by the persons by whom it purports to have been executed and is nothing but a forgery. Some of the said witnesses have stated that the pre- emptors had agreed not to pre-empt the transactions of sale in respect of land belonging to Ali Hussain while others have stated that this undertaking was given in respect of the land belonging to both Ali Hussain and Qasim Ali. No, of them has deposed that the above undertaking also covered the land proposed to be sold by the other two female vendors, namely, Mst. Begum Jan and Mst. Safira Jan, whereas in the agreement deed in question, it is also mentioned that the pre- emptors forego their right of pre-emption in respect of the land which all the for vendors including the above named two women intended to sell to the appellant. The aforesaid flaws in their states are evidence of the fact of the document Exh. D. A. Having not been executed by the pre-emptors in their presence because had they witnessed the execution of the said document, such substantial and material discrepancies would not have appeared in their statements. The finding of the trial Court regarding the document Exh. D. A. Being forged one is also based on the comparison of the signatures of the pre-emptors on the said document with the other documents admitted to be bearing their signatures. The trial Court has found that the signatures of the pre- emptors on the aforesaid document Exh. D. A. Do not tally with the signatures of the pre-emptors on the other documents on which they had admittedly put their signatures. The learned counsel for the appellants had argued that the trial Court had unlawfully undertaken the exercise of examining and comparing the signatures of the pre-emptors on the aforesaid document but I find no substance c in it inasmuch as the Court had the power under the Evidence Act to make such a comparison. In short, the strict proof which is required to establish the waiver of right of pre- emption by conduct is absolutely lacking in this case and the mere production of a document containing recital amounting D to waiver is not sufficient to hold that the pre-emptors had extinguished their right of pre-emption by conduct or waiver unless the execution of the same is satisfactorily proved by legal evidence.
7. For the reasons stated above, I find no substance in all the above appeals which are hereby dismissed with costs. A copy of this judgment shall be placed with each of the appeal files,