' RAJ MUHAMMAD KHAN, J.---This is a revision petition preferred by Nadir Khan against Ali Jan and 3 others whereby the petitioner has challenged the judgment and decree, dated 9-9-2003 of the learned Civil Judge, Lakki Marwat in Civil Suit No,51/1 of 1999 and also the judgment and decree, dated 28-2-2004 of the learned Additional District Judge, Lakki Marwat in Civil Appeal No,41/13 of 2003 whereby the suit as well as appeal of the petitioner-plaintiff were dismissed respectively and the parties were left to bear their own costs.
2. Precisely, the case of the plaintiff-petitioner is that he brought a suit for declaration cum pre- emption to the effect that the transfer of certain land, fully described in the heading of the plaint, made by Baitullah (respondent No,4) in favor of respondents Nos. 1 to 3 through Mutation No,312 attested on 10-2-2000 was in fact sale and pre-emptible by him but to defeat his right of pre- emption, the mutation was given the colour of gift deed.
3. The suit was resisted by defendants Nos. 2 and 3 while the remaining defendants were proceeded against ex parte. The trial Court, on the divergent pleas of the parties framed issues including issue No,5 "as to whether the transaction in question was gift and so was exempt from pre-emption?"
4. After recording evidence of the parties and hearing them following by perusal of the record, the trial Court vide its judgment, dated 9-9-2003 held that the plaintiff had got cause of action, his suit was within time, the, plaintiff had superior right of pre-emption, that the plaintiff did not fulfil the requirement of Talabs in accordance with the provisions of section 13 of the N.-W.F.P. Pre-emption Act, 1987 and that he had waived his right of pre-emption due to his own conduct. The issues regarding the form of the suit, plea of estoppel and sale price were found redundant. The material issue No,5 in the case was decided against the plaintiff pre-emptor inasmuch as it was held by the trial Court that it was a gift mutation as the plaintiff could not prove satisfactorily that it was a sale.
Resultantly, the suit of the plaintiff was dismissed and the parties were left to bear their own costs.
5. Aggrieved of the judgment and decree of the trial Court, the plaintiff petitioner challenged the same before the Additional District Judge, Lakki Marwat and after hearing the parties and perusal of the record, the learned Additional District Judge came to the conclusion that the plaintiff has not proved the factum of sale of the suit transaction as he could not prove the payment of any sale consideration to the transferrer by the transferees and his contention that the transaction was sale was based only on hearsay evidence but still no one came forward to support his assertion that it was actually a sale. Consequently, the first appeal of the appellant met the same fate and now by the instant civil revision, he has challenged the concurrent findings of the two Courts below.
6. The present petition is contested by respondents Nos. 1 to 3 while respondent No,4 is placed ex parte.
7. I have heard learned counsel for the parties, and have gone through the record of the case.
8. The main grounds taken by the petitioner are that both the impugned judgments are based on misreading and non-reading of evidence, that he had duly pronounced his intention to pre-empt and thereafter, had sent notice of Talb-i-Ishhad to the respondents. He maintained that since it was contended by the vendees defendants that the transaction was a gift, they were bound and supposed to prove so but did not produce the donor (respondent No,4) who was much alive and by withholding him to appear as witness, it was presumed that he wouldhave deposed against the vendees. That the gift lacked its ingredients in this case inasmuch as there was no blood relationship between the donor and the donees. He relied in this respect on the authority laid down in the case of Mst. Gohar Sultan v. Gul Waris Khan (PLD 2003 Peshawar 189) wherein it was held that according to Article 129(g) of the Qanoon-e-Shahadat (10 of 1984) that where defendant-vendee did not produce the alleged donor (vendor) to prove that the transaction was gift and not sale, the legal presumption would be that in case the alleged donor was produced, his deposition must have been against the defendant particularly when no relationship existed between him and the vendee on the basis of which property could be gifted to the defendant.
9. On the other hand the respondents have contended that it was bounden duty of the plaintiff pre-emptor to prove that the transaction in question was sale since it was pre-emptor who had alleged so. According to the respondents, the transaction was duly incorporated into gift mutation for which no sale consideration was received by the transferor with whom, the transferees had friendly relations. They relied on the authority laid down in the case of Muhammad Munir v. Naseer Ahmad (2004 CLC 1315) wherein it was held inter alia that there was no bar in law for making gift of land in favor of one's beloved although the parties to the gift may be living apart from each other. It was not the requirement of a valid gift that for making it some reasons were to be assigned by the donor. The respondents have also relied on the authority laid down in the case of Muhammad Anwar v. Muhammad Rafique (2004 CLC 1884) wherein it is laid down that a transaction would not be pre-emptible when its apparent nature is a gift transaction and to prove it to be a sale transaction having been disguised as gift, would be the duty of the plaintiff pre-emptor. That it is settled law that the person who comes to the Court and asserts the fact to be believed true by the Court, has the burden to prove it by bringing cogent evidence on record. That the plaintiff has to stand upon his own legs and has not to use the crutches of the defendant to prove his case. That the principle that beneficiary of gift has to prove it, cannot be applied to a case when existence or validity of gift is challenged by a third person. No doubt the reasons and the motive for making the gift do not appear to be sound on the record yet it does not absolve the plaintiff to prove it a sale transaction. The sale transaction has got its own ingredients, which are to be brought and proved on the record. Additionally, the defendants have relied on the authority laid down in the case of Dodha v. Aadit and another (2005 SCM R 1499) wherein the Hon'ble Supreme Court of Pakistan held that since pre-emptor in that case could not substantiate his stance that the disputed transaction was a sale as none of the witnesses was appeared from the side of pre-emptor has brought on record anyconvincing evidence to prove that it was a sale, leave to appeal was refused to hint m the said case.
10. It is evident from the record that neither the pre-emptor nor his witnesses could prove in this case if any consideration in cash or kind has been passed between the parties to be taken as price for the land in question. Thus the allegation of the pre-emptor that the transaction was sale and so was pre-emptible and not gift as was apparent from the record, has not been proved by him.
Therefore, the concurrent findings of the lower Courts that the transaction was gift, calls for no interference therein since no illegality or legal infirmity appears in the judgments of the lower Courts.
11. As far as the findings of the trial Court on issues Nos.7 and 8 with regard to the fulfilment of requirements of Talbs according to section 13 of the Pre-emption Act, 1987 and waiver of his rights of preemption are concerned, it may be mentioned here that the trial Court has erroneously decided these issues for the reason that the defendant transferees of the land were duly served by the plaintiff pre-emptor with notices of Talb-e-Ishhad through registered post which are E.P. W.3/11 E.P.W.3/2 and Exh.P.W.3/3 vide postal receipts Exh.P.W.2/1, Exh.P.W.2/2 and Exh.P.W.2/3 respectively.
There is no such evidence on record to establish that the plaintiff may have acted in such a manner to have foregone his right of pre-emption. These issues are as such decided in favor of the plaintiff-petitioner and the findings of the lower Courts to this extent are reversed.
12. As a sequel to my foregoing discussion under issue No,5 holding that the transaction in question is gift and is so not pre-emptible, this revision does not succeed and consequently, stands dismissed,' leaving the parties to bear their own costs throughout.