' MUNIR A. SHEIKH, J.---This appeal by leave of the Court is directed against the judgment dated 26- 6-1995 of the Peshawar High Court Circuit Bench, D.I.Khan whereby revision petition filed by the respondents against the judgment dated 5-10-1994 of the First Appellate Court of acceptance of appeal of the appellants against the judgment and decree dated 9-3-1992 of the trial Court through which their suit of pre-emption had been dismissed, has been accepted and the judgment and decree of the trial Court restored.
2. The facts of the case briefly stated are that land measuring 4 Kanals, 6 Marlas comprising two Khatas was purchased by Mushk-e-Alam, respondent No,1 through Mutation No,41657 dated 29-4- 1991 for an amount of Rs,60,000, Mushk-e-Alam, vendee got a mutation entered on 5-5-1991 on the basis of entries in the Roznamcha Waqiati of the same date that he had sold land to respondent No,2 for an amount of Rs,1,60,000. Before the sanction of the said mutation on 23-5-1991, the appellants had filed the suit from which this appeal has arisen on 13-5-1991 in which it was averred that the said mutation of further sale by respondent No,1 in favour of respondent No,2 was entered in order to create complications in the way of the plaintiff in relation to his right of pre-emption, therefore, would be ineffective on his said right if sanctioned during the pendency of the said suit.
3. The right of pre-emption was claimed on the ground of cosharership in the Khata. It was also stated that exaggerated amount of Rs,60,000 was showh as price of the land whereas in fact, an amount of Rs,12,359.40 was fixed and paid. The suit was contested by both the respondents jointly by filing a consolidated written statement in which a plea was specifically raised that the appellants should have pre-empted the second sale made by respondent No,1 in favour of respondent No,2 as further the sale of the land by the vendee was permissible. The trial Court reflected the controversies arising from the pleadings of the parties in the following issues framed by it:--
(1) Whether the suit is defective in its present form?
(2) Whether the plaintiff has fulfilled the requirements of section 13 of the N.-W.F.P. Pre-emption Act, 1987?
(3) Whether the plaintiff's suit is within time?
(4) Whether the plaintiff is estopped to sue?
(5) Whether the plaintiff has got a cause of action?
(6) What is the market value of the suit land?
(7) Whether the plaintiff has got superior right of pre-emption?
(8) Whether the plaintiff is entitled to the decree as prayed for?
(9) Relief.
' Issues Nos.1 and 4 related to the averments of the respondents in relation to the legal effect of alleged second sale by respondent No,1 in favour of respondent No,2 on the suit.
4. The trial Court through judgment dated 9-3-1992 dismissed the suit of the appellants on the ground that requirements of law as regards fulfilment of Talb-i-Muwathibat had not been fulfilled.
On merits, it was held that they had superior right of pre-emption. The price of the land according to the findings of the trial Court based on consideration of the Local Commissioner's Report was held to be Rs,55,900. Under Issues Nos.1 and 4, the trial Court in the said judgment observed that neither they were pressed by the respondents nor any evidence was led in support thereof, therefore, the said issues were answered against them. The appellants filed appeal against the said judgment and decree of the trial Court. The first Appellate Court after reappraisal of evidence came to the conclusion that evidence produced by the appellants on the question of Talb-i- Muwathibat was sufficient to prove the same and the discrepancies noted by the trial Court in the statements of petitioners' witnesses about the time when the same was made were minor in nature which did not adversely affect their credibility. Through judgment dated 5-10-1994, the appeal was accepted and on setting aside the judgment and decree of the trial Court, the suit of the appellants was decreed. The revision petition filed by the respondents has been accepted through the impugned judgment dated 26-6-1995 against which this appeal by leave is directed.
5. Leave was granted to consider whether in the facts and circumstances of this case, findings of the First Appellate Court on a pure question of fact as to Talb-i-Muwathibat could be interfered with under section 115, C.P.C. By the High Court.
6. We have noticed that the High Court on reappraisal of evidence came to the conclusion that evidence of the respondents on the question of Talb-i-Muwathibat was discrepant, therefore, the same could not be held to have proved Talb-i-Muwathibat having been made in accordance with law. It may be mentioned at the very outset that a finding on a question of fact by the First Appellate Court based on appraisal of evidence and inference drawn therefrom could not be interfered with by the High Court under section 115, C.P.C. Merely because the said Court on reappraisal could form a different opinion about the evidence based on different inferences drawn by it. Such finding could only be set aside under section 115, C.P.C. If the same had proceeded upon a misapprehension or had suffered from misreading or non-reading of material piece of evidence on the record.
7. The discrepancies taken note of by the learned Judge of the High Court in our considered view, when read in comparison with the findings recorded by the First Appellate Court and the statements of the witnesses are non-existent, therefore, could not form the basis for interference with the findings of facts of the First Appellate Court apart from the fact that the reasons recorded by the High Court did not constitute misreading or misapprehension of the evidence by the First Appellate Court. It was a case of merely forming a different opinion on the evidence on record, therefore, could not be interfered with under section 115, C.P.C. As such, the impugned judgment suffers from jurisdictional defect as no power of revision was available in this case.
8. The case of the deceased plaintiff Abdul Qayyum when he appeared as P.W.2 was that in the evening time, when he was sitting with Ghulam Muhammad and Ghulam Qasim, he was informed by Aslam that the land in dispute had been purchased by respondent No,1 Mushk-e-Alam and he there and then declared that he would pre-empt the sale. Respondent No,1 was called and a demand was made from him that he being co-sharer in the Khata, therefore the respondent No,1) should accept his claim to purchase the land but he refused. He after five days went to Lakki alongwith Ghulam Muhammad and Ghulam Qasim in connection with issuance of notice for Talb- i-Ishhad. Two notices were got prepared from petition-writer at Lakki and the original notices were issued to the respondents/defendants through post. Copies of the notices were produced as Exh.P.W.2/1, postal receipt Exh.P.W.2/2 and acknowledgement receipt Exh.P.W.2/3. He stated that it was during the pendency of the suit that respondent No,1 had transferred the land to respondent No,2 through a mutation copy of which was produced as Exh.P.W.2/6. It may be mentioned here that no cross-examination was conducted in relation to second sale mutation from respondent No,1 to respondent No,2 in order to show bona fides of the respondents about the said second sale in order to prove that they were seriously contesting the suit on that basis and that the said mutation was not got entered merely to create omplications for the plaintiff in relation to pre- emption suit and as such was a real transaction. He was supported by Ghulam Muhammad who appeared as P.W.3 and Qasim who was examined as P.W.4. The First Appellate Court took note of the fact that the notice of Talb-i-Ishhad was given within the prescribed period of fourteen days the receipt of which had also been proved.
9. Evidence of Abdul Qayyum plaintiff, Ghulam Muhammad P.W.3 and Ghulam Qasim P.W.4 in relation to Talabs was rejected by the learned Judge of the High Court by observing that there were material discrepancies as to time when Talb-i-Muwathibat was made, for at one place, it was stated that the same was made at Deegarwela whereas at the other place it was stated that it was made in the evening time and that Abdul Qayyum plaintiff and \ Ghulam Muhammad P.W.3 stated that they went to Lakki for preparation and issuance of notice after five days whereas Qasim P.W.4 stated that the same was got prepared on the next day. In our view, it was not a case of any discrepancy or contradiction in the evidence of these three witnesses as regards the time and place of making Talb-i-Muwathibat or issuance of notice in relation to Talb-i-Ishhad. The combined effect of reading the statements of these witnesses clearly was that Talb-i-Muwathibat was made on 4-5-1991 on which date all the witnesses are unanimous. As regards time whether it was made at Deegarwela or in the evening, there may be a minor variation that the same could not be treated to be contradiction of each other. The witnesses were making statements after lapse of considerable period from the date of Talb-i-Muwathibat, therefore, they were not expected to remember each and every minor details as to time. These were natural variations which a human being in the ordinary course of business would certainly make which do not in any way detract from the veracity of their evidence. It is also clear from the statements of these witnesses that notice in relation to Talb-i-Ishhad was given after five days of acquiring knowledge of sale by the plaintiff and making of Talb-i-Muwathibat. Copy of the notice is available on the record which was issued on 9-5-1991, therefore, the correctness of the statements was proved that the same was issued after five days of Talb-i-Muwathibat. Statement of Qasim P.W.4 that the notice was got prepared on the next day of Talb-i-Muwathibat which would not in any manner mean that Talb-i-Ishhad was not made after five days. The question as to on which date the notice was got prepared was immaterial, as for the abovementioned reasons, witnesses were not expected to remember each and every date after such a long time and such variations are always held to be natural for they are not to give statement as tape-recorders. The memory of each and every human being is not the same, therefore, it has been proved on record substantially that requirements of performance of both kinds of Talabs i.e,, Talb-i-Muwathibat and Talb-i-Ishhad had been fulfilled and proved. The evidence of the witnesses, therefore, could not have been rejected on the ground of minor variations by holding that the same were discrepancies of material nature.
The appraisal of evidence undertaken by the First Appellate Court was perfectly in accordance with the principles settled by the superior Courts about appraisal of evidence in civil cases and the same did not suffer C from any legal infirmity which could be interfered with by the High Court under section 115, C.P.C. By taking a different view of the evidence and raising inferences of its own.
It is now firmly settled law that findings of facts recorded by the First Appellate Court based on appraisal of evidence and raisins of inferences in its discretion could not be interfered with under section 115, C.P.C. Merely because a different view was also possible to be taken, therefore, the impugned judgment of the High Court suffers from want of jurisdiction.
10. Reverting to the question of second sale allegedly made by the vendee in favour of appellant No,2, it may be mentioned that though in the written statement, a specific ground was taken that the appellants should have pre-empted the said sale as the previous sale had become non- existent but from the findings recorded by the trial Court under Issues Nos.1 and 4 that no evidence was produced to prove the said issues by the appellants on whom onus was placed nor the same was pressed during final arguments, it is clear that the same were abandoned. These issues were answered against the respondents. Though the respondents could not file an appeal as the suit had been dismissed on other grounds but they could certainly under Order XLI, Rule 22, C.P.C.
Support the judgment of the trial Court of dismissal of suit on other grounds also decided against them. It is manifest from the judgment of the First Appellate Court which accepted the appeal of the appellants that no attempt was made by the appellants to argue either orally or by making application against the findings recorded by the trial Court on Issues Nos.1 and 4 against them. In the revision petition, it was stated in the narration of facts that the said second sale had been made but no ground was taken as a ground of attack against the findings of the trial Court under Issues Nos.1 and 4. Nothing was stated in the grounds of revision petition that the observations of the trial Court that the said issues were not pressed were not correct. The learned Judge of the High Court of his own without examining the case on the said issues in detail merely observed that the appellants failed to make any attempt starting from the Talabs upto the filing of pre-emption suit in respect of the subsequent transaction in favour of respondent No,2. Before recording such a finding, the findings of the trial Court under Issues Nos.1 and 4 were required to be set aside and the second transaction of sale was to be scrutinised in the light of the ground taken by the appellants in the plaint that the same was not the real transaction but was created merely to create hindrances in the way of exercise of right of pre-emption by the appellants.
11. In view of the fact that issues Nos.1 and 4 were not pressed as held by the trial Court, the plea raised on the basis of second transaction shall be deemed for all purposes to have been waived by not pressing the same and producing any evidence as observed by the trial Court and also by not raising any plea based on that before the First Appellate Court as observed above to support the judgment of dismissal of suit on that additional ground and by taking no specific plea in the grounds of revision petition that the said issues in fact, had been pressed but the findings of the trial Court to the contrary were wrong, it is not necessary to examine the question of legal effect of the said second transaction on the maintainability of the suit. However, we have examined the record with the assistance of learned counsel for the parties and find that about the factum of second sale, an entry was made in the Roznamcha Waqiati which was produced in evidence as Exh.P.W.1/2. The entries of this Roznamcha Waqiati reveal that report was made on 5-5-1991 in which it was mentioned that the said sale had been made for an amount of Rs,60,000 whereas Mushk-e-Alam, the first vendee when appeared as D. W.1 stated that the same was made for a consideration of an amount of Rs,1,60,000. Unusually, a pronote was also got executed copy of which was produced as Exh.p.W.1/1 from respondent No,2 which is against the normal course of human conduct. The mutation was allegedly sanctioned on 23-5-1991. Neither in the Roznamcha Waqiati, it was recorded that the said sale consideration had, in fact been paid nor it was recorded in the proceedings of the mutation that any payment was made to Mushk-e-Alam. Statement of Mushk-e-Alam on the mutation was firstly recorded on 5-5-1991 in which nothing was stated that he had received the amount of consideration. When it was sanctioned on 23-5-1991, neither Mushk-e-Alam nor the second alleged vendee were present and the same was sanctioned with reference to the order of R.O. Dated 5-5-1991. The sale sought to be preempted was made on 29-4- 1991 ostensibly for a consideration of Rs,60,000 which too was alleged to have been exaggerated whereas within few days i.e, on 5-5-1991, the same land was shown to have been further sold for an amount of Rs,1,60,000. Considering all these facts together, it can safely be concluded that the second transaction of sale was neither real nor the same was intended to be made. Both the respondents appear to have colluded in order to create a fictitious transaction in order to damage the suit of the appellants to pre-empt the original sale. It is why during the trial, Issues Nos.1 and 4 were not pressed before the trial Court as observed above, therefore, the appellants could not be non-suited on the, ground that the second transaction had not been pre-empted, for in our view, it was not a real transaction as such, no second sale shall be deemed to have been made.
12. For the foregoing reasons, this appeal is accepted, judgment dated 26-6-1995 of the Peshawar High Court set aside and that of the First Appellate Court restored.
' There will, however, be no order as to costs.