' MUHAMMAD KHALID ALVI, J.---Brief facts of the case are that through a registered deed dated 19- 9-1977 Exh.D.1 property in dispute measuring 121 Kanals, 18 Marlas situated in village Nal Shamali was allegedly exchanged by one Mansab Dad with the present appellants for land measuring 38 Kanals, 17 Marlas situated in village Nal Janubi. Treating this transaction to be a sale, the respondents, to pre-empt the property obtained by the present appellants filed a suit on 18-7-1978 and claimed the sale consideration as Rs.12,000. The suit was contested by the present appellants, however the same was decreed by the learned trial Court vide judgment and decree dated 9-6- 1981. The same was assailed by the appellants through an appeal which was allowed vide judgment and decree dated 19-4-1983. It was further assailed by the respondents through Civil Revision No.1518 of 1983 which was allowed vide order dated 25-6-1995 and the case was remanded to the learned appellate Court for recording additional evidence on the point of nature of the land and to resolve the real question i.e. That nature of the transaction. After the remand, statements of P.W.5 and P.W.6 were recorded on 15-11-1995 while on the other hand the appellants submitted documents Exh.D2 to Exh.D40. After hearing the parties the learned District Judge vide judgment and decree dated 14-3-1996 dismissed the appeal. Hence this second appeal.
2. Learned counsel for the parties at the very outset have agreed to address their arguments on one point i.e. Whether the transaction in-question was a sale or an exchange.
3. It is contended by the learned counsel for the appellants, that inference drawn by the learned appellate Court on account of non-acceptance of offer of special oath by the respondents is uncalled for in view of the law laid down by the Honourable Supreme Court in 1972 SCM R 649.
4. It is further contended that only' two witnesses P.W.2 and P.W.3 have been produced by the respondents in order to establish the nature of the transaction. Both the said P.Ws. Have admitted that at the time when the transaction was being discussed they were not present. They merely stated that the sale consideration was paid in their presence, therefore, it cannot be inferred that the amount paid by the appellants, even if believed to Mansab Dad was as sale consideration for the property in dispute. It is also argued that admittedly the property exchanged in lieu of the property in dispute was never further dealt with by Mansab Dad in any manner i.e. By way of resale or exchange, nor it is the case of the respondent, therefore, admittedly the property so exchanged is up to date with said Mansab Dad. It is also argued that the nature of the property is admittedly Barani while the property given in exchange was Nehri. The value of both approximately is the same, therefore, on account of such a shaky evidence a registered transaction could not be interfered with.
5. On the other hand, learned counsel for the respondent has controverted the arguments advanced by the appellants by contending that P.Ws.2 and 3 have categorically stated that the amount paid by the vendees to Mansab Dad was as a sale consideration of the property in dispute which could not be appropriately rebutted by the appellants either in the cross-examination or through their own evidence. He has relied on the same judgment i.e. 1972 SCM R 649 to contend that failure to accede to an offer of special oath necessarily entail an adverse inference against the party refusing. It is further argued that the question involved in the case, whether the transaction in dispute was one of exchange or sale is a pure question of fact and concurrently found by the two Courts below against the appellants, which does not call for interference in second appeal. Relies on Mst. Kapoori and 4 others v. Man Khan and 6 others 1992 SCM R 2298.
6. I have considered the arguments of the learned counsel for the parties.
7. There is no denying the fact that the question involved in the instant case whether the transaction in dispute was in fact a sale or exchange is a pure question of fact which has been concurrently found by the two Courts below to be one of sale. Ordinarily such findings of fact are not to be disturbed by this Court in second appeal. However, if reappraisal of evidence indicates that some material aspects have been overlooked by the Courts below, then, of course, this Court has the jurisdiction to reverse such findings of fact.
8. In order to understand the distinction between sale and exchange respective definitions of the said two types of transaction are provided in Transfer of Property Act, 1882.. Sections 54 and 118 are reproduced for ready reference.
' Section 54 "Sale" defined---"Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised."
' Section 118 "Exchange" defined.---When two persons mutually transfer the ownership of one thing for ownership of another, neither thing or both things being money only, the transaction is called an "exchange".
' A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale."
' According to the said definitions for transfer of ownership through a sale, it has to be in consideration of some price paid, partially paid or promised to be paid. While, on the other hand, for a transaction to be one of exchange, it is necessary that none of the two things exchanged is money. Meaning thereby that the distinguishing feature between the two types of transaction is that if money is paid or promised or partially paid then the transaction is one of sale and if no such payment in cash has been made and only two, properties have changed hands, then it is an exchange. Thus, it is obvious that to determine the nature of the transaction, crucial point is to determine whether any money was or was not paid by either of the parties.
9. In the instance case, the transaction of exchange had taken place through a registered document to which much sanctity is attached. It does not mean that the plaintiff was precluded from challenging its nature but heavy burden lay on him to establish it otherwise. Such ostensible transactions can be of two types; a disguise or a devise. A pre-emptor by reliable evidence can unveil a disguise and bring before the Court true face of the transaction but under the pre-emption law a devise is a permissible and legal manner to avoid preemption. The plaintiff in order to establish the fact that in consideration some amount was paid by the appellants to Mansab Dad alleged vendor had produced P.W.2 and P.W.3 apart from his own statement. He himself stated that neither the transaction was negotiated before him nor any amount was paid, therefore, his statement for this purpose has no relevance. The only left out two witnesses are P.W.2 and P.W.3.
P.W.2 Fateh Khan has admitted in his cross-examination his close relationship with the plaintiffs. He has also admitted that he had gone to the "Baithak" of Dost Muhammad per chance, therefore, his statement needs to be guardly scrutinized.
According to him all the four defendants/ Nendees were present at the time when the amount was paid, while according to P.W.3 only Dost Muhammad was present at the relevant time. Both P.W.2 and P.W.3 have admitted that negotiations regarding transaction had not taken place in their presence. They only witnessed the passing of sale consideration but none of them has stated as to whether the said passing of money was with respect to the present transaction or it related to some other matter. P.W.2 has stated that Ghulam Abbas son of Sarwar was also present at the time when the transaction in-question was discussed and payment was made but the said .
Witness has been withheld which necessarily requires an adverse inference to be drawn against the plaintiffs.
10. Apart from this the other attending circumstances also indicate that the transaction in dispute was if exchange. P.W.4 one of the plaintiffs has admitted in cross-examination that out of 121 Kanals of land in dispute only 6 Kanals is "Nehri" while the other is "Barani". D.W.3 one of the defendants stated in his examination-inchief that land measuring 121 Kanals obtained by them is "Barani" as against land measuring 38 Kanals, 17 Marlas given to them is "Nehri". This nature of the land has not been questioned or challenged in his cross-examination. P.W.6 in cross-examination stated that in the year 1977 Barani Land had a rate of about Rs.1,000 per acre while Nehri Land was sold at Rs,2,500/3,000 per acre. If this value is put to both the lands, it roughly comes around Rs.15,000 each. Meaning thereby that the properties exchanged were almost of equal value.
11. It was neither pleaded nor proved by the respondents/plaintiffs that property obtained by Mansab Dad was disposed of by him by way of resale or was dealt with in any other manner. It is thus evident that the said property was retained by Mansab Dad which as earlier observed was of equal value, which was given by him to the appellants.
12. Failure of a party to accede to an offer for taking special oath does not necessarily require an adverse inference to be drawn against such party. A person despite being truthful may not like to take special oath for resolving disputes. However, it can merely be a circumstance which can be looked into but not in isolation. The other attending circumstances of the case based on evidence always stand at a higher footing than this circumstance. Their Lordship in Honourable Supreme Court in case reported as Sher Azam v. Fazle Azim Shah 1972 SCM R 649 observed as follows:-- "The failure of the attorney of the vendee to accept the plaintiff's offer for a special oath does not in any manner prove that the plaintiff's assertion regarding the nature of the transaction was correct."
Since some of the aspects of the case as narrated above could not be attended by the two Courts below, therefore, for the above recorded reasons this appeal is accepted, judgments and decrees of both the Courts below are set aside. Resultantly, suit filed by the respondents is dismissed. No order as to costs.