Mussa plaintiff brought a civil suit on 31-8-1987 against his real brother A.I and two others namely, Abbas and Muhammad Hassan, defendants in the Court of Civil Judge Ist Class, Khaplu, to the effect that his real brother A.I defendant No. l sold his whole landed property to Abbas defendant No. 2 for a sum of Rs.40,000 through a sale-deed; but in order to avoid a suit for pre---emption, defendant No.1 collusively and fraudulently executed and got registered a gift deed dated 11-8-1987 in favour of Abbas defendant No.2 regarding the suit property; that plaintiff's right of pre-emption is superior to that of defendant No.2, as the plaintiff is the real brother of defendant No. l and defendant No. l did not serve the plaintiff with the prescribed notice before entering into the sale transaction.
2. On 27-9-1987, the defendants submitted their joint written statement, wherein they have denied the averments made in the plaint. The defendants have taken a specific plea that defendant No. l A.I has transferred his suit property in favour of defendant No.2 Abbas through a registered gift deed dated 11-8-1987 and the defendants have also raised certain preliminary objections in their written statement.
3. On 18-10-1987, the plaintiff filed his replication to the written statement of the defendants, wherein the plaintiff denied the contents of the written statement.
4. On 16-11-1987, the learned trial Judge, in the light of the pleadings of the parties, framed as many as 10 issues.
5. On 9-2-1988, in support of his contention, plaintiff Mussa got recorded his statement and he also produced Haji Abdus Samad (P.W.1), Muhammad Yousuf (P.W.2) and Habibullah (P.W.3).
6. On 26-3-1988, Abbas defendant No.2 got recorded his statement while defendants Nos.1 and 3 supported the version of Abbas defendant No.2 and defendant No.2 also produced Sultan A.I (D.W.1), Ehsan A.I (D.W.2) and Yousuf (D.W.3) in support of his contention.
7. After recording the evidence of the parties, as they wished to adduce, the learned Civil Judge 1st Class Khaplu decreed the suit in favour of plaintiff against defendants, vide his judgment-decree dated 28-4-1988.
8. Being aggrieved from the impugned judgment/decree dated 28-4-1988 passed by the Civil Judge Khaplu, the defendants filed civil first appeal in the Court of District Judge, Skardu, who in his turn, after hearing arguments of the learned counsel for the parties, dismissed the appeal filed by the defendants, per his judgment dated 31-7-1988.
9. Dissatisfied with the impugned judgment dated 31-7-1988, passed by the District Judge, Skardu, the defendants filed civil second appeal in the Court of the then Judicial Commissioner, Northern Areas.
10. After hearing the arguments of the learned counsel for the parties, the then learned Judicial Commissioner, Northern Areas, accepted the second appeal, set aside the impugned judgments/decrees of the two Courts below and remanded the case to the Civil Judge for fresh trial, holding that the evidence produced by the plaintiff regarding the sale transaction is not convincing and insufficient, with the direction that both the parties, be given a chance to produce additional evidence for and against, in support of their respective contentions, vide his judgment dated 25-5-1990.
11. After remand order, the plaintiff produced Ghulam Nabi (P.W.1) and Muhammad Hassan (P.W.2), while defendant No.2 produced Syed Muharram A.I Shah (D.W.1) and Muhammad Baqir (D.W.2).
12. In the light of the additional evidence produced by the parties, the learned Civil Judge 1st Class, Khaplu dismissed the suit, holding that it is meritless and non-maintainable, vide his judgment dated 15-5-1991.
13. Feeling aggrieved with the impugned judgment dated 15-5-1991, the plaintiff Mussa filed civil first appeal in the first appellate forum. The learned District Judge, after hearing arguments on the appeal, upheld the findings of the learned trial Judge and dismissed the appeal, per his judgment dated 4-3-1992.
14. Not content with the judgment dated 4-3-1992, passed by the first Appellate Court, the plaintiff/appellant Mussa challenged the impugned judgment of both the Courts below through the present second appeal.
15. I have heard the arguments at length advanced by the learned counsel for the parties and have also gone through the entire record of the case.
16. At the very outset, the learned counsel for the appellant raised question that the Punjab Pre- emption Act is not applicable to the Northern Areas; learned counsel for the respondents frankly conceded and rightly too that in the Northern Areas, the Gilgit and Baltistan Right of Prior Purchase Regulation, 1938 is applicable, so the question of Punjab Pre-emption Act does not arise in the present case.
17. In the case in hand, the only point for determination is, whether the suit land was sold by defendant No. l to defendant No.2, or it was a valid gift in favour of defendant No.2. If it is proved that the suit land was actually sold, naturally the plaintiff is entitled for the decree as prayed for, otherwise the suit is liable to be dismissed.
18. To decide the fate of the case, it entirely hinges on Issues Nos. l and 3 which are most crucial and material issues. The learned Judicial Commissioner had rightly appreciated the evidence so adduced by the parties before the remand of the case, holding that the evidence produced by the plaintiff is insufficient and not convincing to prove the alleged sale transaction between defendant No. l and defendant No.2. The learned Judicial Commissioner should have dismissed the suit instead of remanding the case to the trial Court for trial afresh, but even then the plaintiff- appellant has miserably failed to prove his case through oral as well as documentary evidence.
After remand order, the plaintiff produced Ghulam Nabi additional (P.W.1) and Muhammad Hassan additional (P.W.2) who could not support the plaintiff's version, while defendant No.2 produced a notable person of Khaplu namely Syed Muharram A.I Shah additional (D.W.1) who is the scribe of the registered gift deed dated 11-8-1987, whose veracity could not be shattered by the plaintiff in any way and there is no reason to discard his evidence, which fully supports the version of defendant No.2, besides the statement of Muhammad Baqir additional (D.W.2).
19. The statement of Haji Abdus Samad, father-in-law of the plaintiff/appellant (P.W.1) and the statement of Habibullah (P.W.3) are contradictory to each other regarding the sale transaction and the plaintiff appellant has failed to produce Fida Hussain, who is a marginal witness of the agreement deed dated 17-7-1987 (Exh.P/1) on which the plaintiff-appellant has mainly relied, as mentioned in para. 3 of the plaint. The said agreement deed has no relevancy with the registered gift deed, because the agreement deed was executed before the registered gift deed. According to the agreement deed dated 17-7-1987 (Exh.P/1), the defendants No.1 and defendant No.2 shall not enter into a sale transaction, but there is no embargo upon the defendants Nos. l and 2 to transfer the land by way of a valid gift deed, as admitted by Haji Abdus Samad (P.W.1) in his statement before the trial Court.
20. When the plaintiff-appellant has failed to prove Issues Nos. l and 3, it is sufficient for the dismissal of his suit and there is no need to discuss the other issues. From the bare reading of the evidence adduced by the plaintiff, it is crystal clear that the plaintiff-appellant has miserably failed to prove the alleged sale transaction between the defendant No. l and defendant No.2 and during the course of arguments, the learned counsel for the appellant himself admitted that there is no direct evidence regarding the sale transaction. Even then the defendant No.2 has succeeded to prove the registered gift deed dated 11-8-1987 through a reliable witness namely Syed Muharram A.I Shah, who is also scribe of the registered gift deed.
21. In the light of the above discussion, I am not inclined to accept this appeal. The result is that the appeal fails and stands dismissed. The impugned judgments dated 4-3-1992 of the first Appellate Court and 15-5-1991 of the trial Court are maintained. The parties are left to bear their own costs.