NABIR GANAI Vs. MOHD ISMAIL GANAI

JUDGEMENT

(1.) THIS is plaintiffs first appeal and arises out of a suit instituted by him to pre -empt the sale made by one Mst. Asha Bibi in favour of Ismail Ganai for a sum of Rs. 3,500/ -. The plaintiffs case is that his house is contiguous to the house sold by the vendor to the vendee and that he has a prior right to purchase the property as against the defendant vendee. He further averred that defendant No. 3 by a fictitious document had exchanged his property with defendant No. 1 but that exchange was not genuine. Defendants Nos. 1 and 2 contested the suit on the ground that the plaintiff had waived his right to pre -empt the sale, that defendant No. 3 had become owner of the property in dispute by a. deed of exchange dated 22nd Poh, 2011 and registered on 22nd Phagan, 2011 and that the plaintiff does not possess superior right of purchase in respect of the property in dispute against defendant No. 3. The trial Court after considering the evidence adduced by the parties came to the conclusion that the defendants had not proved the plea of waiver but in view of the fact that defendant No. 3 who had acquired the property by exchange from defendant No. 1 had equal right of prior purchase as that of the plaintiff, the latter could not succeed in his suit. The plaintiffs suit was accordingly dismissed. He has come up in appeal to this Court.

(2.) IT was argued that the trial Court had not given any clear finding in regard to the fact whether the exchange was genuine or not. The case was remanded to the trial Court with the direction that it should examine the evidence adduced by the parties in respect of the exchange and record its finding whether or not the exchange was genuine. Complying with the directions of this Court the trial Court has found that the exchange was fully proved by the evidence adduced by the defendants. The plaintiff has filed his objections to the finding arrived at by the trial Court in respect of the exchange.

(3.) IN this appeal it is argued on behalf of the appellant that the trial court has erred in holding that the exchange was genuine. We have been taken through the evidence adduced by the parties in regard to the exchange. The exchange has been effected by virtue of a document executed on 22nd Poh 2011 which was subsequently registered on 22nd Phagan 2011. The scribe and the marginal witness of this exchange deed have been produced who deposed that the exchange was effected in their presence and the document was executed after its contents were read over to the parties. The plaintiff has not produced any evidence in rebuttal and there is nothing to show that the document was a fictitious one. Even, the plaintiff in his statement has not mentioned that the exchange was not genuine. Under these circumstances the transaction of exchange is fully proved and the finding arrived at by the trial Court in this behalf cannot be disturbed.