' This regular second appeal has been filed to call in question the appellate judgment and decree of the learned District Judge, Dera Ghazi Khan, dated 25-2-1975 whereby he accepted the appeal of the pre-emptor/respondent No,1 after reversing the judgment and decree of the trial Court, dated 16-5-1974.
2. The brief facts of the case are that the appellant was a defendant in the suit for pre-emption who had acquired the property in dispute through exchange which was witnessed by mutation, dated 8-12-1970. He exchanged this land with Ali Muhammad for the equal area. This exchange was sought to be pre-empted by two parties. One was Ahmad Khan who filed an independent suit and the other pre-emptor was respondent No,1 in this appeal, namely, Manzoor Ahmad. The suit was resisted by the present appellant.
3. The trial Court framed as many as seven issues and the material issue was issue No,1 whether the transaction in question was in fact a sale and not an exchange. The parties let their respective evidence. The finding of the trial Court was that it was an exchange and not a sale. The learned counsel for both the sides state that the other issues were either deleted, abandoned or given up and they are no more live issues.
4, The judgment and decree of the trial Court was only appealed against by Manzoor Ahmad respondent No,1 whereas the other pre-emptor Ahmad gave up. The learned District Judge by his impugned judgment and decree, dated 25-2-1975 allowed the appeal and decreed the suit of the respondent No,1 after holding that the transaction was a sale under disguise and cloak of an exchange. Hence this R.S.A. by the defendant.
5. The learned counsel appearing in support of this appeal has argued that the error of approach on the part of the learned District Judge is manifest inasmuch as after discarding the oral evidence led at the trial by the plaintiff pre-emptor he has gone by the surrounding circumstances and in this context he has misread the statement of Faiz Ullah appellant as D.W.3. The learned counsel illustrates that the impression gained by the learned District Judge was as if the appellant had admitted in his evidence that he had withdrawn a sum of Rs,11,500 for payment to Ali Muhammad the transferor. According to the learned counsel this misreading vitiates the impugned judgment and decree and after its exclusion from consideration, there was nothing left for the learned District Judge to accept the appeal or reverse the findings of the trial Court.
6. The contention of the learned counsel for the respondent is that even if the misreading part is excluded, the learned District Judge may have come to a contrary conclusion on the basis of the material on the record and in the light of the law governing the matter in issue.
7. After hearing the learned counsel and going through the record with their able assistance, I have come to the conclusion that indeed the learned District Judge has dealt with the first appeal under section 96 of the C.P.C. rather cursorily and in doing so has not taken into consideration the relevant provisions of Order XLI, rule 31, C.P.C. The appellate judgment falls short of the legal requirement. Indeed a right of first appeal is a valuable vested right of the parties.
8. In so far as the validity of the impugned judgment is concerned, I find substance in the contention of the learned counsel for the appellant that there has been a misreading in material respects as regards the evidence of D.W.3 to the extent that he has attributed an admission on his part whereas intact it was a denial regarding payment of money to Ali Muhammad in respect of the amount drawn from the bank. The learned counsel appearing on behalf of the respondent are unable to controvert this position and rather admit that there has been a misreading on the part of the learned District Judge. I have also gone through the original record and I find that indeed D.W.3 has stated that it was incorrect that he had withdrawn the money for the purpose of payment to Ali Muhammad.
9. In view of the order that I propose to pass, I do not think it will be advisable on my part to enter into merits of the case lest it prejudices the case of either party before the first appellate Court. The learned counsel for both the sides agree.
10. However, it is pointed out from both the sides that this is a rather old matter and a direction be issued to the learned District Judge Dera Ghazi Khan to dispose of the appeal afresh after hearing both the parties.
11. In view of what has been pointed out above, I think the judgment and decree of the learned District Judge is liable to be set aside on account of misreading of evidence which formed one of the basic for the finding and decision. The appeal is accordingly accepted. There will however be no order as to costs in view of the reasonable attitude adopted by the parties.
12. In deference to the wishes of learned counsel for both the sides, I would direct that the learned District Judge will himself hear this matter and dispose it off within one month. The parties are directed to appear before the learned District Judge on 15-4-1984 as per convenience of the counsel for both the sides. The office of this Court shall ensure that the record of the lower Court is remitted to the learned District Judge, Dera Ghazi Khan before 15th of April, 1984 positively.