MUHAMMAD MUZAMMAL KHAN, J. - Instant civil revision assailed judgment/decree dated 22.7.1998 passed by the learned Additional District Judge, Kharian, whereby respondent appeal was accepted and petitioner's suit for possession through pre-emption was dismissed by reversing judgment/decree passed by the Trial Court on 22.12.1997.
2. Precisely, relevant facts are that respondents got in exchange land measuring 8 kanals of village Mahlu, from Wali Muhammad vide exchange Mutation No. 998, dated 20.7.1991. Respondents in lieu of land obtained by them, transferred land measuring 3 kanals, 16 marlas to Wali Muhammad Qadar Dad/petitioner filed a suit for possession through pre-emption against Mutation No. 998, dated 20.7,1991, with the claim that same was sale but was dubbed into an exchange transaction just to defeat his superior pre-emptive rights. According to him respondents had purchased the suit land for a consideration of Rs. 45,000/- without transferring any land in lieu thereof. Petitioner pleaded that he gained knowledge of the sale only 12 days earlier to the institution of the suit when he immediately exclaimed his intention exercising his superior pre-emptive right. He further asserted that he within the statutory period sent a registered notice of Tlab-i-lshhad to the vendees which was not responded, necessitating filing of the suit. According to petitioner by filling the Suit he preformed Tlab-i-Khusumat.
3. Respondents being defendants in the suit contested the same by filing their written statement wherein they refuted the assertions of the petitioner. Respondent, pleaded that transaction subject of suit was not pre-emptiable being that of exchange. They urged that market value of the suit land was about Rs. 1,50,000/-. They also denied performance of talbs in terms of the law applicable. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Civil Judge, seized of the suit, after doing the needful decreed the suit of the petitioner vide judgment/decree dated 22.12.1997.
4. Respondent felt aggrieved of the decree passed by the Trial Court and consequently filed an appeal before the learned Additional District Judge where they succeeded, as their appeal, was accepted and petitioner's suit was dismissed on 22.7.1998, by reversing judgment/decree of the Trial Court. Petitioner, thereafter filed instant revision petition which was admitted to regular hearing and after completion of record, has now been placed for final hearing. Respondents in response to notice by this Court, appeared and were represented through their counsel.
5. I have heard the learned counsel for the parties and have examined the record, appended herewith. The question which hinges for determination by this Court is, as to whether transaction sought to be preempted is a Sale or Exchange. Determination of this point is also necessary for the maintainability of petitioner's suit for possession through pre-emption because the same could only be filed against sale. It is clear from Mutation No. 998 (Ex. P.5) that the same was sanctioned by the Revenue Officer on attestation by one Boy Lumberdar and Mian Sajid Pattidar who were the best witnesses to depose regarding nature of the transaction conducted between the respondents and Wali Muhammad but none of them were produced by the petitioner or summoned through the process of the Court. The statements of the witnesses produced by the petitioner revolved around gaining of knowledge by the petitioner of the transaction in question and making of talbs by him. Under law, in absence of evidence to the contrary, a transaction was to be taken, as conducted by the parties thereto. Since the petitioner was plaintiff and had prayed a pre-emption decree, he was under obligation to prove that transaction reflected in Mutation No. 998 was, as a matter of fact, sale but i.e remained thirsty of the proof in this behalf. Respondents have transferred their land measuring 3 kanals,'16 marlas in favour of Wali Muhammad in lieu of land got by them.
The mere disparity in the area of the land exchanged may be a circumstance leading to old that the transaction is sham but this required some solid corroborative the evidence in support of the claim that respondent had purchased the land but there was not an iota to evidence showing bargain/negotiations of sale between the parties. The stance of the learned counsel for the petitioner that it is not probable that respondent would transfer only 3 kanals, 16 marlas in lieu of 6 kanals of land hence the exchange transaction may be declared to be sale, has not impressed me to set aside well reasoned appellate judgment because there is nothing on the i.e to show that both the land subject of Mutation No. 998 were of the same value;, utility; potential; location and fertility. Besides it, if some body out of his own choice/free will agrees to exchange his bigger part of land with some chunk of land, according to his suitability/requirement, no third person ha nay right to object to it, to his own benefit. Evidence on the i.e, left no room to urge that Appellate Court had drawn incorrect conclusion of the suit transaction being an exchange. This Court had earlier in the case of Muhammad Irshad and 4 others v. Sardar Khan (1981 CLC 124), Ghulam Hussain through Legal Heirs v. Mean Bibi (1995 M LD 435) and Ahsan and 5 others v. Doulat Khan and another (2002 CLC 66) held that some cogent evidence was needed to hold its nature other than the one reflected by the parties to it. Applying ratio of these judgments, as earlier noted, there was nothing on the i.e in support of the findings given by the Trial Court. Adverting to the objection of the learned counsel for the petitioner that respondents did not transfer possession of the land given by then to Wali Muhammad which would make the transaction that of sale. According to my humble view, absence of transfer of possession would not invalidate the transaction itself, especially when ownership thereof had been transferred. The Hon'ble Supreme Court graciously mandated in the case of Muhammad Amjad Khan v. Province of Punjab and others (20'04 SCMR 1389) that law does not create any bar for exchange of land if due to any reason, delivery of possession did not take place, similar view was expressed regarding transfer of possession under the transaction of exchange, in the case of Muhammad Bibi and 4 others v. Province. Of Punjab (2000 CLC 769). Scan of record, evidence of the parties and case law on the subject, led me to hold that respondents did not purchase the suit land which was got by them in exchange of their land and Mutation No. 998 was correctly sanctioned by the concerned parties, as that of exchange.
6. Through for the reason already noted in the foregoing paragraphs, petitioner's suit for possession through pre-emption was not competent at law by virtue of section 5 of the Punjab Pre-emption Act, 1991 where under only a sale could be pre-emoted yet I proceed to examine as to whether petitioner fulfilled the prerequisites of filing his suit, in form of the performance of "Tlabs". In the first place, petitioner did not mention any specific date of gaining of knowledge and instead pleaded in his plaint that he gained knowledge 12 days earlier to the filing of the same on 10.1 CL 1991 which means that according to him, transaction came to his knowledge on 28.9.1991. Petitioner while appearing in the witness-box as PW.7 deposed that he got copies of the revenue record/sale-deed 5/6 days earlier to the filing of the suit and if according to this statement, date of gaining of knowledge of the petitioner is calculated, it will be as 04.10.1991. Petitioner produced in evidence copies of the revenue record Exs. P.2 and P.3 which were jamabandis for the year;s 1987- 88 and Register Khasra Girdwari from 07.11.1988 to 11.3.1991 and the revenue patwari of the Circle issued those copies on 29.9.1991 and go a long away to show that petitioner was aware of transaction much before this date. On the basis of these dates of knowledge of the petitioner, one can easily conclude that he concocted a story of bull and cock in an attempt to fulfil the requirements of Section 13 of Punjab Pre-emption Act, 1991, under this provision of law on account of non-performance of any Talb mentioned therein, the pre-emptor was to extinguish his right, if any.
7. It goes without saying that if someone is made to believe that petitioner did perform Tlab-i- Muwathibat on anyone of the dates above calculated, he will be surprised to note that petitioner did not he prove/produce notice of Tlab-i- Ishad alleged to have been sent by him to the respondents. Performance of Tlab-i-lshhad is not only mandatory but it the back bone of the &uit, without which the same could, not have been decreed. Under law, petitioner was required to prove issuance of notice of Tlab-i-lshhad attested by two truthful witnesses, its dispatch to each of the vendees and its delivery to the addressee but there is no proof in support thereof, as the notice itself has not beep attempted to be produced in evidence. Petitioner could decided the /is- without committing any illegality/irregularity or error of law/facts.
8. For the reasons noted above, no case for interference in revisional jurisdiction of this Court, was made out and consequently instant revisions petition, being devoid of any merit, is dismissed with no order as to costs.