' I intend to decide, the following revision petitions by one consolidated judgment having similar facts and law:--
(1) C.R. No. 182 of 1998;
(2) C.R. No.183 of 1998.
2. The brief facts out of which the aforesaid revision petitions arise are that the petitioners exchanged the land measuring 25 Kanals, 2 Marlas with one Ahmad Khan son of Sultan Mehmood through Mutations Nos.562 and 563 dated 23-12-1990 in each mutation. Respondent came to know about the said exchange on 20-3-1991. The respondent immediately announced in presence of the witnesses namely Ghulam Rasool and Ghulam Nabi to file a suit against the petitioners for possession through pre-emption. The respondent sent a notice to the petitioners on 27-3-1991.
Respondents filed two suits in the Court of Civil Judge Ist Class, Phalia on 21-4-1991 against the petitioners. The respondent filed written statements in both the suits, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the learned Trial Court framed the following issues:--
1. Whether the plaintiff possesses superior right of pre-emption qua the vendee/defendant? OPP
2. Whether the plaintiff had fulfilled the requirements of the Talbs before bringing this suit? OPD
3. Whether the suit has been incorrectly valued for the purposes of Court fee. If so what is correct valuation? OPD
4. Whether the impugned transaction is in fact a sale? OPP.
5. What is the market value of the suit-land? OPP
6. Whether the defendant has spent Rs.10,000 on mutation etc. And he is entitled to recover the same from the plaintiff, in case the suit is decreed against him? OPD
7. Relief.
' The learned Trial Court dismissed the suits vide separate judgments and decree dated 19-2-1997.
The respondents being aggrieved preferred two appeals in the Court of Addl. District Judge, Mandi Baha-ud-Din, who accepted the same vide separate impugned judgments and decrees dated 23- 12-1997. The petitioners being aggrieved filed the present revision petitions.
2. The learned counsel of the petitioners submits that the First Appellate Court erred in law to reverse the findings of the Trial Court without adverting to the reasoning of the trial Court. He further submits that the respondent mentioned the date of knowledge 20-3-1991 in para 3 of the plaint, P.W.2 Muhammad Aslam mentioned the date of knowledge in his statement as 25-3-1991 whereas P.W.3 Ghulam Nabi has mentioned the date of knowledge as 20-3-1991. P.W. 4 Ghulam Rasool and Nazir Ahmad P.W. 5 did not mention a single word qua date, therefore, there is variation in the contents of the plaint, and statements of the witnesses of respondent/plaintiff before the Trial Court, which fact was not noted and appreciated by the First Appellate Court in its true perspective, which is not in consonance with the law laid down by the superior Courts. In support of his contention, he relied upon Haji Lal Shah and another v. Abdul Khaliq and another (2004 SCMR 409) and Ali Muhammad and others v. Abdul Majid and others (2002 YLR 2487). He further submits that First Appellate Court has declared the exchange as sale merely on the ground that the quality and price of the two lands in question are different whereas the respondent/plaintiff failed to provide sufficient material through oral as well as documentary evidence to show that it is a sale and not exchange, which is not in consonance the law laid down by the superior Courts. In support of his contention, he relied upon the following judgments:-- ' Muhammad Zaman v. The State. (PLD 1993 Peshawar 13); Sher Azam v. Fazle Azim Shah (1972 SCMR 649); Raja Muhammad Siddique v. Abdur Rehman. (1997 CLC 1819); Syed Khalil-ur-Rehman Chishti v. Abdul Hamid Khan (2004 SCMR 838).
' He further urges that in case the First Appellate Court has declared the exchange as sale then it is necessary and proper for the First Appellate Court to direct the respondent/plaintiff to implead Ahmad Khan as respondent, who is necessary and proper party as the rights of Ahmad Khan has been taken of through the impugned judgments of the First Appellate Court.
3. The learned counsel of the respondent submits that the First Appellate Court has decided the appeals after reappraisal of the evidence on record in accordance with law, which is prerogative of the First Appellate Court while deciding the appeals under Section 96 C.P.C. He further submits that the First Appellate Court has given findings after reappraisal of the evidence on record that in fact it was a sale between the petitioners and respondent, therefore, the Trial Court was not justified to give findings in favour of the petitioners that it was exchange. He further urges that in pre-emption suit the original owner from whom the petitioners have purchased the land is not necessary and proper party. He further urges that the petitioners have not taken this ground in the memorandum of revision petitions before this Court, therefore, petitioner's counsel is not entitled to raise this plea which was not taken by the petitioners in the memorandum of the revision petitions at the time of arguments. He further submits that Talbs were also proved by the respondents in accordance with law. Mere mentioning date by the witnesses 25-3-1991 instead of 20-3-1991 is not a material irregularity, which is human error, therefore, impugned judgments are 'valid in the eye of law. He further submits that in case the First Appellate Court has committed irregularity not to direct the respondent to implead Ahmad Khan as respondent. The case may be remanded for this purpose of the First Appellate Court.
4. The learned counsel of the petitioner in rebuttal has reiterated that the First Appellate Court failed to give findings against the petitioners on issue of Talb and issue of exchange without judicial application of mind and in violation of the parameters prescribed by the superior Courts.
5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
6. It is settled principle of law that it is the duty and obligation of the First Appellate Court to reverse the findings of the Trial Court after meeting the reasoning of the trial Court as per laW laid down by the Honourable Supreme Court in Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617). The relevant observation is as follows:-- "The learned Appellate Court, however, accepted these receipts without adverting to the very cogent reasoning given by the trial Judge for their rejection. The High Court was, therefore, right in the view that a finding reached by the First Appellate Court which totally ignored the reasons given by the trial Judge for a contrary finding, could not be upheld in second appeal."
In case the findings on both the issues and judgments of the trial Court and First Appellate Court are put in a juxta-position then the First Appellate Court has decided the cases in violation of the parameters prescribed by the Honourable Supreme Court in the aforesaid judgment. It is settled principle of law that when the First Appellate Court has decided the cases in violation of the parameters prescribed by the superior Court then it is terms as material irregularity. In arriving to this conclusion, I am fortified the law laid down by the Honuorable Supreme Court in the following judgments:-- "Kanwal Nain's case" (PLD 1983 SC 53) "Shaukat Nawaz's case" (1988 SCMR 851)
7. The material issue between the parties is whether impugned transactions between the petitioner and original owners are in fact sale or exchange. The Superior Courts have laid down certain parameters to determine the true nature of transaction in such situation. It is settled principle of law that solitary/disparity in price in transaction or exchange cannot be demolished transaction itself in view of definition prescribed under the provisions of Transfer of Property Act with regard to sale in section 54 and exchange in section 118 of the said Act. Both the terms have distinctive features and independent of each other. In arriving to this conclusion, I am fortified by the law laid down in the following judgments:-- "Ghulam Hussain's case" (PLD 1989 Lahore 73) "Rahim Bukhsh's case" (1992 CLC 2433) "Muhammad Irshad's case" (1981 CLC 124).
It is also settled principle of law that areas and quantities of the properties said to be exchanged were unequal, no irresistible inference of sale can be drawn, as per law laid down by the Superior Courts in the following judgments:- "Sher Azam's case" (1973 SCMR 649) "Aamar Sane's case" (AIR 1947 Pesh. 29) "Allah Dad's case" (PLD 1968 Lahore 428) "Faqir Shah's case" (PLD 1951 Pesh. 14) "Haji Mamma Khel's case" (1992 SCMR 1785)
"Raja Muhammad Siddiq's case" (1997 CLC 1819)
"Syed Khalil-ur-Rehman's case" (2004 SCMR 838)
8 The First Appellate Court as mentioned above, has decided the appeals without meeting the reasoning of the trial Court, therefore, First Appellate Court has committed material irregularity and this Court has ample jurisdiction to exercise powers under section 115, C.P.C. In case, as mentioned above, the First Appellate Court has decided the cases in violation of the dictum laid down by the Honourable Supreme Court. I do not want to reappraisal the evidence and decide the revision petitions myself in such situation one of the parties will lose right of revision before this Court and this Court will not be benefited by the findings of the First Appellate Court.
9. In view of what has been discussed above, the revision petitions are accepted and the judgments of the First Appellate Court are set aside meaning thereby the appeals filed by the respondents shall be deemed to be pending adjudication before the First Appellate Court. Parties are directed to appear before the First Appellate Court on 22-2-2005, who is directed to decide the appeals of the respondents afresh after reappraisal of the evidence keeping in view the law laid down by the superior Courts and provisions of law, preferably within six months after receiving the order of this Court without being influenced by the observation of this Court in accordance with law. Parties and their counsel are directed to cooperate with the First Appellate Court so that the matter may be finalized within the prescribed period. In case any of the parties or its counsel fails to cooperate with the First Appellate Court then the First Appellate Court is directed to invoke the penal provisions against the said party.