' MALIK MUHAMMAD ASLAM KHAN, J.-This is a certificated appeal against the judgment and decree of the High Court dated 28-7-1975.
2. The appeal before the High Court arose from the fact that the appellant had brought a suit for possession of the suit land on the basis of his prior right of purchase arising out of a registered gift- deal dated 9-1-1966. In this gift-deed the brother of the appallant, Mohammad Said Khan, had gifted away the suit land in favour of his son-in-law and nephew, Mohammad Hayat Khan respondent, for services rendered by him in the past and promise of future services to be rendered.
The case of the appellant was that the gift-deed was effected in order to defeat his right of prior purchase. Issues Nos, 1 and 3, which pertain to this controverted fact, were found in favour of the appellant by the trial Court' resulting in the prayed for decree in his favour. But on appeal before the District Judge, Rawalakot, the learned District Judge after thoroughly examining the witnesses produced by the appellant (no witness was produced by the respondent) came to the conclusion that the trial Court had erred in holding the gift-deed as a sale-deed. He, therefore, accepted the appeal of Mohammad Hayat Khan and dismissed the suit vide his judgment dated 7-7-1974.
Against this judgment, All Akbar Khan preferred the second appeal before the High Court which met with the same fate and hence the present certificated appeal before us.
3. Since neither the respondent nor his counsel appeared before us in spite of issuance of due notices to them, ex parte proceedings were taken against the respondent.
4. We have heard the learned counsel for the appellant and considered his arguments. His main contention is that since no witness had been produced by Mohammad Hayat Khan respondent in the trial Court, the first and the second appellate Courts fell in error in rejecting the evidence of the appellant. We find this argument devoid of force as it rests on an erroneous assumption that in a civil suit if the other party does not produce any evidence, the claim of the party adducing evidence should be accepted, irrespective of the quality or the strength or weakness of the evidence so produced. It is a question of elementary principle that no evidence, even if A it is not rebutted, can be accepted ipse dixit without its evaluation and I the Court finds that the one-sided evidence suffers from such grave defect as to render it unreliable, the Court cannot blindly accept the version o such witness. In the present case, the trial Court has simply mentioned the names of the witnesses without going into their merits which is not a proper way of deciding civil suits. As such, the decision of the trial Court cannot be given much weight as against the decision of the first and the second appellate Courts which have fully gone into the statements of the witnesses, weighed strength and weakness and after critical analysis have come to the conclusion that because of the gross contradictions, the witnesses produced by the appellant can not be relied upon. Moreso when such of al evidence is pitted against a registered gift-deed by the donor in favour of his son-in-law in lieu of services rendered in the past and to be rendered in future. It may also he stated here that some of the very witnesses of the appellant had admitted that the donee had been rendering services to the donor in the past. In view of such an analytical appreciation of the evidence by the Courts below, we find no force in these arguments of the learned counsel for the appellant. Apart from this, we find that the question as to whether the gift-deed was in reality what it purported to be or a sale deed in the garb' or a gift-deed, is purely a question of fact as no point of interpretation of law is involved in this case. It has been our practice not to go into concurrent finding of fact unless some gross misreading of evidence or an appreciation of evidence leading to manifest injustice is shown. Such is not the case here and, therefore, finding no force in this appeal, we dismiss it. No order as to costs.
L D 1978 SC (A J & K) 111 Present : Chaudhury Rahim: Dad Khan, C. .1, and Raja Muhammad Khurshid Khan, J MOHABBAT ALI-Appellant versus NEK MUHAMMAD-Respondent Civil Appeals Nos, 31 and 32 of 1975, decided on 15th November 1977.
Azad Jammu & Kashmir Interim Constitution Act, 1974- - S. 42(15)-Both parties feeling aggrieved against judgment of High Court and agreeing to findings of trial Court to be restored-Judgment and decree of trial Court, in circumstances, restored. [p.
11214 Syed Ghulann Hussain Shah for Appellant. Kh. Bashir Ahmad Farooqi for Respondent. Date of hearing : 15th November 1977.
' CHAUDHURY RAHIM DAD KHAN, C. J.-These two letters patent appeals stood transferred to the Judicial Board on passing of the Judicial Board Act, thereafter to this Court under section 42, subsection (15) of the Interim Constitution Act 1974. Both these appeals arise out of the judgment and the decree of the High Court dated 19-2-75 whereby the High Court partially accepted the appeals filed by Nek Mohammad, pre-emptor-plaintiff, against the judgment and decree of the learned District Judge, Mirpur, dated 1-12-1972 maintaining the judgment and deree of the Sub- Judge, Bhimber, dated 31-12-1969.
2. Makhan, brother of .Nek Mohammad, vide sale deed dated 15-8-1967 sold land measuring 10 kanals 18 molar under Survey Nos, 990, 991/1 and 993 situate in village Khandors, Tehsil Bhimber, in favour of Mohabbat Ali for an ostensible consideration of Rs, 11,000. Nek Mohammad instituted a declaratory suit with an alternative prayer for possession on the basis of his right of prior purchase.
Declaration was sought on the ground that the land in dispute was under the joint possession of the plaintiff qua vendor, therefore the vendor was not competent to alienate specific number. In the alternative the plaintiff prayed for decree on basis of the Right of Prior Purchase Act. The trial Court dismissed the plea for declaration but decreed the suit on the alternative ground of pre- emption granting a decree for possession on payment of Rs, 10,000. The District Judge, on appeal being filed by the pre-emptor, maintained the judgment and decree of the trial Court. On second appeal by Nek Mohammad plaintiff-pre-emptor the High Court partially accepted the appeal holding that the land to the extent of 2 kanals 6 marlas under Survey Nos, 990 and 991/1 was in joint possession of pre-emptor qua vendor and the vendor could sell only so the extent of his half share in these numbers. Consequently, the declaratory decree to the effect that the sale deed executed by Makhan Din-vendor, in favour of respondent Mohabbat Ali was ineffective and inoperative as against the appellant to the extent of 1 kanal 3 marlas under Survey Nos, 990 and 991/1 was passed but maintained the decree to the extent of land under Survey No, 993. As regards the amount on payment of which the pre-emptor could exercise his right of prior purchase it was held that in spite of the reduction in the area pre-empted, it would not make any difference with regard to the amount to be paid and maintained the amount of consideration on payment of which the trial Court held that the pre-emptor was entitled to exercise his right of pre-emption.
3. The finding of the High Court or that of the trial Court as regards the amount of consideration of payment of which the pre-emptor could exercise his right of prior purchase was not challenged before us. In fact the vendee did not challenge the finding of the trial Court by way of appeal up to the High Court.
' Learned Advocate for the parties made a statement at bar that the finding of the High Court may be set aside and that of the trial Court may be restored. None of them feels satisfied as regards the finding of the High Court. Both feel aggrieved about it and both agree that the finding of the A trial Court may be restored. In view of the statements of the Advocates, for the parties at the bar we set aside the judgment and the decree of the' High Court to the extent it was reversed and restored the judgment and the decree of the trial Court. The pre-emptor, if he has not paid the pre-emption amount and cost of' registration etc. Under the decree so far, will pay now by 15-1-1978. Parties shall bear their own costs.