1. SAJJAD AHMAD, J.-This appeal, by special leave, arises out of a pre-emption suit which was decreed by the trial Court but dismissed, on appeal, by the Additional District Judge, Peshawar. In a further appeal to the High Court of West Pakistan, Peshawar Seat, a learned Single Judge upheld the judgment of the lower appellate Court.
2. The transaction which was sought to be pre-empted was alleged to be a sale by the appellant who was the plaintiff-pre--emptor in the suit. The respondents, Dr. Lal Faqir Khan and his minor son, Akbar Khan, contended that it was a gift and as such not pre-emptible The transaction in question was made through a mutation bearing No. 4531 which was attested on the 18th of March 1954, whereby the land comprised in Khasra No. 2941 measuring 6 kanals and 11 marlas situated in the estate of Shabqadar was transferred by its owners, namely, Haji Muhammad Akram Khan and Mukarram Khan, by way of tamligh to the respondents aforesaid. This mutation was initially entered at the instance of the respondent Dr. Lal Faqir Khan on the 2nd of March 1954, as a sale mutation in favour of himself, his minor son, Akbar Khan and his mother Mst. Margho Bibi, in lieu of Rs. 2,500 as the purchase value. Entries in the remarks column Nos. 10 and 13 of the aforesaid mutation were made by the Patwari to that effect. However, as described in the mutation order, when the owners, i.e. Haji Muhammad Akram Khan and Mukarram Khan appeared before the attestation officer, D. W. Amir Sarwar Khan, they denied that it was a sale transaction but admitted having given the land under the mutation by way of tamligh to the respondents.
3. The contention of the appellant that the transaction was in fact a sale, was primarily based on the entries in columns Nos. 10 and 13 of the mutation, which were put forward as an admission on the part of the respondent Dr. Lal Faqir Khan as to the nature of the transaction. In addition, oral evidence consisting of the statements of the appellant, P. Ws., Khaki Jan, Mir Ahmad Shah and Muhammad Aslam, was produced to prove the sale. In rebuttal, the respondents produced Mr. Shafiullah Khan, Assistant Director of Frontier Constabulary and Mr. Aslam Ashraf, an Assistant Political Officer, who stated that they had gone in jirga to the owners with the request that they should give the land in question to Dr. Lal Faqir Khan and that they agreed to make a gift of it to him in view of his services as their family doctor.
4. The learned Single Judge in the High Court in further appeal has carefully weighed the evidence led by both sides and has held in concurrence with the view of the first appellate Court that the oral evidence of the plaintiff appellant to prove that it was a sale transaction, did not inspire confidence. On the contrary, the evidence produced by the respondents' witnesses, consisting of responsible Government servants, supported the defence version that the transaction was one of gift.
5. Whether the transaction in question was a sale or a gift, is essentially a question of fact and we see no valid ground for interference with the finding reached by the Additional District: Judge and the High Court on that point, which has been based on a careful appraisal of the entire evidence led in the case. The remarks in columns Nos. 10 and 13 which were pressed into service by the learned counsel for the appellant as an admission by Dr. Lal Faqir Khan, cannot be treated as conclusive in the matter. It may be that Dr. Lal Faqir Khan was keen to obtain the land by purchase in spite of the offer of the owners to give it to him free and he, therefore, got the mutation entered as one.,,~ of sale. It is not stated even in those remarks that any part of'' the purchase money was paid to the vendors. We agree with the Additional District Judge and the learned Single Judge of the High Court that there is no satisfactory proof at all on the record as regards the payment of the sale consideration by the respon--dents, to the owners who were big land-holders and, according to the evidence on record, had donated several other pieces of lands to charitable institutions. We feel persuaded to hold that the owners instead of receiving a paltry amount of Rs. 2,500 preferred to oblige their family doctor by giving the land to him as a gift free of any cost.
6. We consider that the matter has been correctly decided by the High Court and does not merit our interference. The appeal is dismissed, but we make no order as to costs.