TANVIR BASHIR ANSARI, J.--- Briefly the facts are that respondents Nos. 3 to 7 were the owners of land measuring 52 kanals, 11 marlas situate within the revenue estate of village Adamkey Tehsil Daska District Sialkot. They ostensibly executed a registered exchange deed with Ali Ahmad son of Mir Dad petitioner of this land with 12 kanals, 6 marlas of land owned by the petitioner in village Rehan Cheema. Alleging that in fact this was a transaction of sale, Rana Muhammad Akram and Rana Muhammad Afzal (respondents Nos. 1 and 2) filed a suit for pre-emption . Claiming a superior right of pre-emption.
The sale consideration of the suit land was averred to be Rs. 3,60,000/-.
2. The suit was contested both by the petitioner as well as respondents Nos. 3 to 7. The superior right of preemption was controverted. The suit itself was challenged on the ground that the transaction between the parties was one of exchange and that it was not susceptible to the exercise of right of pre-emption. The performance of Talabs was also. Denied.
3. From the divergent pleadings of the parties, the following issues were framed:-- ISSUES Whether the plaintiffs have no cause of action? OPD Whether the ,plaintiffs have no locus standi to file the present suit? OPD.
Whether the plaint is liable to be rejected as the plaintiffs have challenged the exchange in the present suit? OPD.
Whether the suit is not maintainable in its present form? OPD.
Whether the, plaintiffs have fulfilled the demands of Talabs, if not, with what effect? OP. Parties.
Whether the suit is false and vexatious, if so, are the defendants, entitled to special costs in case of dismissal of suit? OPD.
Whether the impugned exchange is in fact a sale transaction? OPP.
If issue No. 7 is answered in affirmative, then was the ostensible sale price Rs. 3,60,000/- fixed actually and paid in good faith? OP. Parties..
(9) It issue No. 8 is not answered in affirmative, then what was the market value of the suit land at the time of impugned transaction? OP. Parties.
(10) Whether the plaintiffs have alleged right of preemption, if so, are they entitled to the prayed for decree? OPP.
(11) Relief.
4. In support of the plaint, the plaintiff produced Riaz son of Ali Muhammad PW-1, Irshad Ahmad PW-2, Zaheer Ahmad PW-3, Rana Muhammad Akram plaintiff PW4, Nathey Khan PW-5, Muhammad Khan PW-6, Muhammad Ramzan PW-7, Muhammad Nawaz PW-8 and lnayat Ullah'
PW-9. In documentary evidence, the plaintiffs inter alia tendered Ex.P-1 to Ex.P-36.
On the other hand, the defendants produced Muhammad Akram DW-1 and Sher Muhammad DW-
2. Amongst documentary evidence, Ex.D-1 (registered exchange deed), Ex:D-2 (special power-of- attorney) and agreement to sell between Muhammad Akram etc. And Rai Shabbir Ahmad were produced.
5. The learned Trial Court appraised the said evidence and dismissed the suit vide. Judgment and decree dated- 3.4.1996. It is found that although the plaintiffs had superior right of pre-emption and have also performed the Talabs in accordance wth law, it non-suited the plaintiffs on the ground that the transaction was one of exchange which was evidenced by a registered exchange deed and that there was no sufficient evidence on the record to prove that it was a sale.
Theplaintiffs/respondentsNos.1and2 preferred an ar.Peal. The learned Appellate Court re- appraised the evidence on the record and discussed the same with particular reference to issue No. 7 which dealt with the nature of the disputed transaction. The learned Appellate Court reconsidered the statement of the plaintiff Rana Muhammad Akram PW-4, Nathey Khan PW-5, Muhammad Khan PW-6, Muhammad Ramzan PW-7 and Muhammad Nawaz PW-8 and came to the conclusion that the transaction was in fact a sale. The learned Appellate Court also placed reliance upon lnayat Ullah PW-9 who is the marginal witness of an agreement to sell executed between respondents Nos. 3 to 7 and 8 who deposed that the suit land measuring 52 kanals, 11 marlas was in fact transferred by sale for a sale consideration and that the exchange deed was executed in favour of the petitioner All Ahmad only as a ploy to defeat tie suit for pre-emption. The learned Appellate Court did not consider the statements of DW-1 and DW-2 to be confidence inspiring and supportive of the deed of exchange.
5.The learned Appellate Court also found that all the Talabs were proved in accordance with law and also that the plaintiff had established a superior right of pre-emption. Resultantly, the appeal was allowed and a decree for preemption was passed in favour of respondents Nos. 1 and 2 for a sale consideration of Rs. 3,60,000/- vide judgment and decree dated 31.7.1999.
7. The learned counsel for the petitioner has assailed the judgment of the learned Appellate Court on the ground that the findings recorded by it on issues Nos. 1 to 4 are not in accordance with law and are erroneous. He has also challenged the findings of the learned Appellate Court upon issue No. 5 relating to the performance of Talabs as also upon the core issue regarding the nature of the transaction. It is further submitted that the learned Appellate Court had grossly erred in fixing the sale consideration as Rs. 3,60,000/- as the sale price in the agreement to sell relied upon by the plaintiffs and the learned Appellate Court was Rs. 6.60,000/- and that there was no justification for reducing the sale consideration. The learned counsel also challenged the findings of the learned Appellate Court upon the issue of superior right of pre-emption on the ground that the same was a result of mis-reading and non- reading of material evidence on the record.
8. On the other hand, the learned counsel for the respondents /plaintiffs contends that the learned Trial Court, even though, dismissing the suit of the plaintiffs upon its findings on issue No. 7, had found the issues relating to superior right of pre-emption (issues Nos. 1, 2 and 10) in favour of the plaintiffs. The petitioner failed to file an appeal or cross-objections against the said findings and thus, shall be precluded to challenge the said findings in revisional jurisdiction. It is submitted that on the same parity of reasons, as the learned Trial Court had found upon issue No. 5 that the plaintiffs/respondents had fulfilled the performance of Talabs, the same not being challenged in appeal or by way of cross-objections shall be deemed to have attained 'finality. Learned counsel has placed reliance upon the cases of Muhammad Afzal Khan and another Vs. Muhammadlatif and another (1995 CLC 1951), Muhammad Aslam and 2 others Vs. Syed Muhammad Azim Shah and 3 others (1996 SCMR 1862), Govt. Of NWFP through Chief Secretary and another Vs. Muhammad Zaman and others (1996 SCMR 1864), Muhammad Hussain and others Vs. Muhammad Gulzar (PLD 2001 Lah. 390), Ilamuddin through Legal Heirs Vs. Syed Sarfraz Hussain through Legal Heirs and 5 others (1999 CLC 312) and Muhammad Hassan Vs. Dharaamdas and others (2000 YLR, 637) to support this contention.
It is further submitted that the learned Appellate Court has reappraised the entire evidence on the record and upon issue No. 7 has cogently relied upon the statements of PW4, PW-5, PW-6, PW-7 and PW-8 to come to the, conclusio that the transaction was in fact a sale. The statement of PW- 9 was also found to be corroborative of the transaction being one of sale. It is submitted that in revisional jurisdiction, reappraisement of evidence may not be undertaken as no misreading or non-reading of evidence has been indicated. Reliance is placed upon the cases of Muhammad Munir and others Vs. Hafiz Muhammad Rafique and others (2004 SCMR 1551) and Muhammad Siddique and another Vs. Sajawal Khan and another (2001 SCMR 302).
9. Arguments have been heard and record perused.
10. It is manifest from the record that the learned Trial Court had returned the findings upon the issues pertaining to the superior right of pre-emption in favour of the plaintiffs. The petitioner had neither filed an appeal nor challenged the said finding by way of cross-objections before the learned Appellate Court. The petitioner ' shall be precluded from challenging the same in revisional jurisdiction as the findings of the learned Trial Court upon this issue shall be rendered conclusive qua the petitioner. In the same vein, the findings of the learned Trial Court upon issue No. 5 regarding the performance of Talabs would attain finality against the petitioner as he failed to challenge the said findings of 'fact before the learned Appellate Court. The challenge thrown to the said findings by way of the present Civil Revision is mis-conceived.
11: I have gone through the evidence on the record with the assistance of the learned counsel for the parties. Rana Muhammad Akram plaintiff has appeared as his own witness as PW-4 and has stated that respondents Nos. 3 to 7 who were the owners of the suit land measuring 52 kanals, 11 marlas in the first instance agreed to sell the same in favour of Rai Shabbir Ahmad respondent No. 8 through- an agreement to sell dated 12.11.1992. He has further deposed that instead of completing the sale transaction, the same was instead controverted into an exchange deed with the petitioner/defendant No. 1 in order to defeat the exercise of the right of pre-emption. His statement is corroborated by Nathey Khan PW-5 and Muhammad Khan PW-6. Even Muhammad Akrame respondent No. 3 who appeared as DW-1 has admitted that prior to the exchange deed Ex.D-1, an agreement to sell was executed by him in favour of Rai Shabbir Ahmad. He however, stated that he subsequently revoked the said agreement and exchanged the land with Ali Muhammad petitioner in order to avoid the pre-emption and felt satisfied with a smaller chunk of land in exchange with the suit land. Even DW-2 did not deny the agreement to sell executed earlier.
More importantly the plaintiffs had produced Inayat Ullah PW-9 who is a marginal witness of the agreement to sell who categorically stated that in fact respondents Nos. 3 to 7 had entered into an agreement to sell with respondent No:. 8 which agreement was attested by him as a witness and that the exchange deed was merely executed to avoid the right of pre-emption.
12. After perusing the entire oral evidence alongwith the agreement to sell when seen in juxta- position with the registered exchange deed, it becomes manifest that the actual transaction was that of sale. No mis-reading or non-reading of evidence, has been pointed out which would render the findings of the learned Appellate Court as liable to interference in revisional jurisdiction.
13. The learned counsel for the. Petitioner has also not been able to indicate any jurisdictional error or defect in the impugned judgment passed by, the learned Appellate Court.
14. A perusal of the agreement to sell (Ex.P-34) would however, show that the sale consideration mentioned therein is specified to be Rs. 6,60,000/-. It was for this sale consideration that the suit land measuring 52 kanals, I marlas was agred to be sold by respondents Nos. 3 to 7 in favour of respondent No. 8. According to this Ex.P-34, a sum of Rs. 3,00,000/- were paid as earnest money and the balance of Rs. 3,60,000/- was to be paid upon the execution of the sale-deed. Ex.P-34 itself is a registered sale agreement. Although, the statement of lnayat Ullah PW-9 is supportive of the execution of the agreement to sell and also supportive of the transaction of sale in favour of the petitioner; yet his statement regarding the sale consideration shall not be acceptable as against the sale price mentioned in Ex.P-34.
15. In view of the above discussion, there is no merit in the Civil Revision which is dismissed, so however, that the sale consideration is fixed at Rs. 6,60,000/- and the decree passed by the learned Appellate Court is modified accordingly. The balance of the sale price after deduction of the amount already deposited shall be made with one month of the announcement of this judgment; failing which the suit of the plaintiffs/respondents Nos. 1 and 2 shall be deemed to have been dismissed.
Civil .