MAULVI ANWARUL HAQ, J. - Vide Mutation No. 11550 attested on 29.10.1991 the suit land was acquired by (respondent No. 1 from respondent No. 2, a brother of the petitioner. On 22.12.1991 the petitioner filed a suit for possession of the suit land by pre-emption. According to him, he was a Shafi Sharik, Khalit and Jar. He further stated that a fictitious transaction of exchange was got recorded vide Mutation No. 1550 whereas the land was, in fact, sold by respondent No. 2 to respondent No 1 for a consideration of Rs. 50,000/-. It was further pointed out that simultaneously with Mutation No. 1550, Mutation No. 1552 was got attested on 29.10.1991 whereby the land allegedly given in exchange was sold to respondents Nos. 3 and 4, the minor sons of " respondent No 1 for Rs. 45,000/-. Performance of talbs was pleaded. The suit was contested primarily by respondent No. Stating that, he has, in fact, got the land 'in exchange and further that talbs have not been performed. Following issues were framed by the learned Trial Court:-
(1) Whether the suit of the plaintiff is bad for misjoinders of necessary parties? OPD.
(2) Whether the plaintiff has got no cause of action against the defendants? OPD.
(3) Whether the plaintiff is estopped from his own words and/conduct to file the suit? OPD.
(4) Whether the plaintiff has already waived his right of pre-emption and his suit is liable to be dismissed? OPD.
(5) Whether the suit is not properly valid for the purpose of Court-fee and jurisdiction? If so, then, what is the correct value of the suit land? OPD.
(6) Whether the defendants are entitled to recover special costs under Section 35-A, C.P.C. From the plaintiff? OPD.
(7) Whether the defendants are entitled to recover expenses incurred on the execution . Of transaction of exchange in case the suit of the plaintiff is decreed? OPD.
(8) Whether the disputed land was actually sold in consideration of Rs. 50,000/- and in order to defeat the superior right of pre-emption of the plaintiff an oral exchange mutation was entered in the revenue record? OPP
(9) Whether the plaintiff has superior right of pre-emption against the defendants? OPD,
(10) Whether the plaintiff has fulfilled pre-requisites of Talbs in accordance with law and he has also mentioned Zarar and Zaroorat in accordance with law? OPP.
(11) Whether the plaintiff is entitled to decree as prayed for? OPP.
(12) Relief.
Evidence of the parties was recorded. All the issues were found In favour of the petitioner and the suit was decreed subject to deposit of Rs. 50,000/- vide judgment and decree dated 22.12.1996. The respondent No. 1 filed a first appeal which was allowed by a learned A.D.J. Ferozewala, on 22.3.1999.
The findings on issues. Nos. 8 and 10 were reversed.
2. Learned counsel for the petitioner contends that the learned A.DJ. Has acted with material irregularity in the exercise of his jurisdiction while holding the transaction to be an exchange as also mis-read the evidence on record while reversing the findings of the learned Trial Court in the matter of talbs. Learned counsel for the respondents, on the. Other hand, supports the impugned judgment and decree of the learned A.D.J. With reference to the evidence on record.
3. I have gone through the copies of the available records, with the assistance of the learned counsel for the parties. So far as the matter pf nature of transaction is concerned, I do find that both Mutations No.. 1550 as well as 1552 were taken up arid attested on 29.10.1991. Vide the latter mutation, the land stated to be given in exchange was sold to the minor sons of the respondent No
1. There is no explanation forthcoming on record-for the said conduct: It will, thus, be seen that the vendor i.e respondent No. 2 never became the owner of the said land given in exchange for a moment which was simultaneously sold back to the sons of the respondent No. 1 for consideration.
In somewhat similar circumstances, in the case of Syed Shahbaz Hassan V. Syed Muhammad Hussain and others (1997 SCMR 197), the Hon'ble Supreme Court held the transaction to be one of sale and not of exchange. I, therefore, set aside the findings recorded by the learned A.D.J. On issue No. 8 restore those of the learned Trial Court.
4. Now so far as the matter of talbs is concerned,, it was stated in para-3 of the plaint that the petitioner came to know about the sale on 13.12.1991 and made a talb. It was then stated in para-7 that the petitioner went to the house of the respondent No. 1 with the witnesses and offer Rs.
50,000/- but he refused and thus he made the Talb-i- Ishhad. Thereafter, he sent a notice duly attested by three truthful witnesses to the respondent No. 1 under registered cover A.D.
5. The respondent No. 1 denied the said facts. The petitioner appeared as PW-9 on 6.7.1996 and started that four years and 1 1/2 month ago, he was sitting at the Dera of Munir alongwith Nazir and Munir when Manzoor came and I informed that he had gone to sell milk to the vendor who has stated that he was sold the land to Siddique (respondent No. 1). Whereupon he stated that he has superior right of preemption and he will file a suit. The said Manzoor appeared as PW-5 while Nazir Ahmad appeared as PW-6. In the matter of Talb-i-Muwathibat nothing derogatory could be brought out in the cross-examination. To my mind, the first talb stands established on record. Now in. The matter of talb-i- ishhad, Manzoor Ahmad PW-5 stated that they went to the house of respondent No. 1 but he refused to take the money. Thereafter they came to the Courts, consulted a lawyer who wrote a notice (Ex. P.3) and he affixed his thumb impression. Nazir Ahmad is PW-6. He stated that he alongwith petitioner, Munir Ahmad and Manzoor Ahmad went to the house of the respondent No. 1 and gave him Rs. 50,000/- but he stated that he will not take the money They then came to the Courts and a notice was got typed by a lawyer, which was signed by Munir, Manzoor and himself. He then stated That he thumb marked the notice Ex.P.3. Now the petitioner appeared as PW-9 to state that next day after acquiring knowledge he went to the house of the vendee alongwith Manzoor, Nair and Munir. He offered the money to respondent No. 1 who refused and the following day, he went to the Courts alongwith the witnesses, got the notice typed which was thumb marked by the witnesses and he posted the same under registered cover.
6. Now Siddique respondent No. 1 has appeared as DW-3 to state that the petitioner never made a talb and never came to him with any person and that Imam. All petitioner and his witnesses are lying. Now so far as the matter of the said notice (Ex. P.3) is concerned, I am afraid that the petitioner himself negated the testimony of his said witnesses. In the course of his cross- examination, he has stated that he got the thumb impressions of the witnesses on the notice. He admitted without any demur that the thumb impressions were obtained on blank papers and thereafter the notice was typed. He was further cross-examined and he admitted that when notice was being typed the witnesses had left for their village. He has further stated that he does not at all know as to what was written in the notice. To my mind, the allegation that the petitioner went to the house of the respondent No. 1 with the consideration amount and he refused to accept it stands duly rebutted on record while it is in the statement of the petitioner himself that no valid notice evidencing Talb-i-Ishhad was given. I; therefore, do confirm the finding of the learned A.D.J. That making of a valid Talb- i-Ishhad has- not been proved on record. Because of this latter finding, the impugned judgment and -decree of the learned A.D.J. 'cannot be interfered with in exercise of revisional jurisdiction. The civil revision accordingly is dismissed.