MAULVI ANWARUL HAQ J. - Vide registered exchange deed dated 4.12.1995 the. Petitioner acquired the suit land measuring 20 kanals, mentioned in para. 1 of the plaint. On 1.4.1996, the respondent filed a suit for possession of the suit land by pre-emption. According to him the suit land had in fact been sold by Abdul Qadeer to the petitioner for a consideration of Rs.-2,25,000/-. He claimed to. Be shaf-e^sharik,khaleet and Jar. Performance of talabs was also pleaded. The petitioner filed a written statement stating that the transaction is a bona i.e exchange and he had transferred his land measuring 24 kanals to Abdul Qadeer in exchange for the suit land. He further stated that he has earlier acquired land in the same Khata from said Abdul Qadeer. Further allegations in the plaint were denied; Issues were framed. Evidence of the parties was recorded. Learned Trial Court dismissed the suit on 20.9.2000. First appeal filed by the respondent was allowed by learned Additional District Judge, Jhang on 01.02.2002 who decreed the suit subject of payment of Rs.
2,25,000/-.
2. Learned counsel for the petitioner contends that the evidence on record has been misread by the learned ADJ. According to him there is no evidence on record that the transaction was a sale for a cash price. Learned counsel for the respondent^ on the other hand, supports the impugned judgment and decree by. Alleging that in the course of his evidence the, petitioner himself described the transaction as a sale and further that the offer of special oath was refused by him hence adverse inference was to be drawn. Learned counsel for the petitioner rejoins to cite the case of "Bashir Ahmad v. Muhammad Luqman'' (1999 SCM R 378) that refusal to take oath does not lead to any adverse inference.
3. I have gone through the copies of the records appended with the i.e with the assistance of the learned counsel for the parties. Muhammad Hayat, petitioner, appeared as DW-1 to state that he gave 24 kanals and some marlas of land in exchange for 20 kanals of suit land. The possession was also exchanged. He was cross-examined at length. It was not even suggested to him that he had purchased the land for Rs. 2,25,000/. It was not even suggested to him that the possessions of the respective lands were not exchanged. The only suggestion given and denied by witness is a follows:- {{ URDU TEXT MISS }}
4. There is no suggestion that the land given is not proper proportionate to the suit land area or in value. 'Ex.-D.-1 is the said exchange mutation deed, containing the particulars of the exchange, attested in favour of Muhammad , Hayat, petitioner on the basis of exchange Ex. D.3 attested in .
Favour of Abdul Qadeer with reference to Ex. D.1 and Ex. D.4 Sikandar Abbas, respondent appeared Ss PW-1. He has simply stated .That the exchange is "Jhocta". He also stated that be is ready to take oath that, "It is not an exchange". According to him the shit land is situated at the edge of the road whereas the land given in exchange is two miles away from the same. He was. Confronted with his plaint where he had not taken any such plea. Statement of Farhat Abbas, PW-2 is also silent on this matter. In para-2 of the plaint, it has been stated that the respondent came to know about the sale on 14.2.1996 when he along with Ghulam Abbas and Farhat Abbas was present at the suit land. The petitioner came there and declared his intention to get possession and told that he was, purchased the land from Abdul Qadeer for Rs. 2,25,000/- on 4.12.1995 but in order to save himself from exercise of right of pre-emption has been disguised the transaction as an exchange. This is also what has been stated by respondent as PW.1 and Farhat Abbas PW.2. The petitioner, of course, had denied the said fact. It is highly improbable that after going through the said exercise of disguising the transaction to save himself from a pre-emption suit, the petitioner, out of all the persons in the world, would approach the only person who had filed the pre-emption suit against him and to have disclosed the said secret. "Be that as it ma^, there is nothing oh record, even remotely, to suggest that the transaction was not one of exchange but of sale for consideration.
Learned Trial Court, therefore, had properly read the evidence while holding the transaction to be an exchange.
5. . Coming to the judgment of the learned ADJ; he has proceeded to deal with the matter as if the parties to the aside exchange had challenged the very existence and validity to the transfer itself.
He has proceeded to object as why Abdul Qadeer was not produced. He has also objected to the non-production of marginal witnesses to the exchange. He has also observed that whereas Abdul Qadeer purchased the land from brother of the respondent i.e years prior to the said exchange for Rs. 5,10,000/- the value is written in the exchange document as Rs. 2,25,000/-. According to him, , this is proof of the in-credibility of the' transaction of exchange. I wonder as to on what principle the mentioning of a lower price can affect the credibility of the transfer itself when it was riot questioned by any of the parties to the exchange. Learned ADJ has also observed that the respondent as PW.1 offered to take oath on Holy * Qur'an and also that he will accept oath of the, opposite party but the petitioner refused, Here again learned ADJ has not cared to read the.
Relevant portion of the statement which is as follows:--- {{ URDU TEXT MISS }} The petitioner appeared as DW-1. He gave the following reply to the relevant question:-- {{ URDU TEXT MISS }}
6. Learned counsel for the respondent refers to the case, "Muhammad Aslam v. Muhammad Hayat', (1999 SCMR 1246) to urge that the said refusal on part of the petitioner to accept said offer of the respondent is by itself sufficient to establish that the transaction was a sale.
7. I have gone through the said judgment. The relevant facts are mentioned in para-7 at page 1348 of the said report. During the pendency of the C.R. Before this Court, an application was filed by the pre-emptor for settlement of the dispute on special oath to be taken the vendee. This was refused.
The application was not pressed and was dismissed. This Court observed that the said fact lead to a genuine inference that the parties were themselves not sure with regard to the correct nature of the transaction and that they were not truthful in their claim that it was a transaction or an exchange. It further appears that before the learned ADJ, in the course of hearing of first appeal as well said offer was made and was refused. Learned ADJ had made the following observation in his judgment.
"The defendant not only turned down this offer but They also frankly conceded that I was a sale."
The said observation was not challenged before this Court. Apart from this, the categorical finding recorded by this Court in the said case of Muhammad Aslam, was that t|ie plot stated to have been given in exchange for the suit land in the said case did not exist pursuant to the case set up by the pre-emptor that the vendees did not own any plot in the said residential area and the same was never handed over to the vendor. Said facts are clearly distinguishable. On the other hand, the legal position laid down in the said case of Bashir Ahmad by the Hon'ble Supreme Court of Pakistan is that no adverse inference is to be drawn in case of denial by any of the party to accept offer of special oath. I, therefore, do hold that the learned ADJ has acted with material irregularities in exercise of his jurisdiction while holding the transaction to be a sale. His finding join] the relevant issue No. 1 is accordingly reversed and that of learned Trial Court is restored.
8. So far as the matter of superior right of preemption is concerned. I do find that both the parties are co- sharer in the Khata. There is no denial on the record that the petitioner had not purchased 6/4 marlas of land in the same Khata from .Abdul Qadeer. Mutation Ex. D.5 is sufficient to establish the said fact in a suit of instant nature. Both the parties, therefore, have equal right of pre-emption.
The reasoning given by learned ADJ that the said land is "Saknr is of no relevant under the present dispensation i.e. Punjab Pre-emption Act, 1991, as under Section 5 thereof, the right of pre-emption arises in a case of sale of immovable property. Learned ADJ had in his mind the provision of old Act, 1913 as interpreted by the superior judiciary. So far as the matter of Talbs is concerned, I have already made my observations above as to the apparent falsity of the plea taken in the plaint and sought to be proved in the source of evidence.
9. C.R. Accordingly is allowed. The impugned judgment and decree dated 0.1.02.2002 of learned ADJ, Jhang is set aside while the one, passed by learned Trial Court dismissing the suit of the respondent, is restored.
No order as to costs. Civil revision