The instant civil revision is directed against the judgment and decree dated 31.07.1995 passed by learned Additional District Judge, Dera Ghazi Khan, whereby accepting the appeal of respondent, judgment and decree dated 29.05.1994 passed by learned Civil Judge, Dera Ghazi Khan has been set aside and suit for pre-emption filed by the respondent has been decreed.
2. The respondent filed suit for possession claiming his superior right of pre-emption as against the petitioner on the basis of being Shafii-Sharik, Shafi-i-Jar and Shafi-i-Khalit. The petitioner contested the suit through his written statement raising various objections to its maintainability. He alleged that the land in dispute had been alienated . to him through a gift and it was not a sale transaction, therefore, the suit was not maintainable. The learned trial Court framed the necessary issues and recorded evidence of the parties. After recording the evidence and hearing the arguments of the parties, learned trial Court proceeded to dismiss the suit vide- its judgment and decree dated 29.05.1994. The respondent filed appeal which was accepted by the learned appellate Court vide judgment and decree dated 31.07.1995. Aggrieved by the judgment and decree passed by the learned Additional District Judge, the petitioner has approached this Court through civil revision.
3. I have heard the arguments of learned counsel for the parties and have gone through the record.
4. Learned counsel for the petitioner has contended that date, time and place of Talb-e- Muwathibat have not been recorded in the plaint therefore, suit is not maintainable. The petitioner has adduced evidence to the effect that the disputed land was gifted to him through Mutation No, 605 dated 29.10.1992, and it was not sale, but his evidence has not been discussed by the learned appellate Court, therefore impugned judgment and decree is not sustainable.
5. Learned counsel for the respondent has, on the other hand, contended that in view of dictum laid down by the Hon'ble Supreme Court of Pakistan in "Haji Noor Muhammad through his legal heirs versus Abdul Ghani and 2 others" (PLJ 2000 SC 595), the details of date, time and place and the names of those persons in whose presence Talb-eMuwathibat was made, was not required to be specifically mentioned in the plaint. Learned counsel has further contended that it is proved from evidence on record that the transaction was a sale and not gift. Therefore, the suit has been rightly decreed by the learned appellate Court.
6. As regards Talb-e-Muwathibat, in Para No, 3 of his plaint, respondent recorded that he came to know about the impugned sale on 18.12.1992 in a meeting where he Pronounced to pre-empt the sale. On the following day, he along with Atta Muhammad son of Karam and Ilayat son of Punnu approached the petitioner and asked him to return the disputed land after taking its price amounting to Rs, 15,000/- and as such requirements of Talb-i-Ishhad were also fulfilled. He has further recorded in Para No, 4 of the plaint that on 22.12.1992 notice was issued to the petitioner and to fulfill requirements of Talb-i-Khasumat, suit was filed. While appearing as PW.2 also the respondent has reiterated the ;above averments of the plaint. In Para No, 6 of the above referred judgment, the Hon'ble Supreme Court of Pakistan, on the issue of Talabs has made the following observations:-- "We confirm the view taken earlier by this Court that the pleadings may refer to the material facts but the law does not require the pleadings to contain gist of all the facts and names of witnesses of the plaintiff and that the suit for preemption is not an exception to such general principles, which is well settled in our jurisprudence. We are, therefore, unable to endorse the view taken in the impugned judgment of the High Court that the requirements of Talab-e-Muwathibat cannot be fulfilled unless details, particulars, date, time and place are also specifically mentioned in the plaint and the names of the persons in whose presence such Talab is made is also mentioned therein."
In view of these observations of the apex Court, the contention of learned counsel for the petitioner is devoid of any force.
7. However, as regards the contention that transaction in question was a gift and not sale and as such suit for pre-emption was not competent, the respondent in his cross-examination has stated that he obtained copy of the mutation from Tehsil Office, Dera Ghazi Khan and got perused from a Patwari. It was sale mutation. He has further stated that, in fact, it was a sale but to defeat the right of pre-emption, mutation for gift was got sanctioned. He has not adduced any other evidence to prove his contention that the disputed property was sold to the petitioner and it was not alienated to him through gift. In 'Muhammad Azam and 11 others versus Muhammad Nawaz and 8 others"
(2005 CLC 1593), it has been held by this Court that in order to show and prove that the transaction is not the same as is described and recited in the document, heavy onus lies on the, party so pleading. It is also settled law that passing of the sale consideration must be proved by the plaintiffs/preemptors for such purpose. In this judgment reliance has been placed on "Sher Azam versus Fazle Azim Shah" (1972 SCM R 649) wherein it has been observed that for a transaction to be a sale it is necessary that price in cash must have been paid for the thing sold, and that there must be transfer of ownership on the one side and cash price for it on the other. As mentioned above, the respondent in this case has not brought on record even an iota of evidence to prove that the disputed property has been sold to the petitioner and its price has been paid to the vendor. The petitioner, on other hand has stated that the disputed property was gifted to him through mutation. Besides his own statement, he has examined Dost Muhammad (D.W.2) who is attesting witness of the mutation (Exh.P3). He has also supported the case of petitioner that the land was alienated by way of gift and any price was not paid. Thus, in view of evidence on record the respondent has failed to discharge the onus to prove that the impugned transaction was sale and not a gift. The inference drawn by the learned appellate Court that since the vendor and the petitioner are not related interest as well as belong to different castes, therefore it was a sale transaction, is absolutely incorrect. The law does not require a person to alienate his property through gift only to his relatives, he can gift his property even to a stranger. It is settled law that right of preemption can be defeated by any legal means or device. Reference may be made to "Raja Muhammad Siddique versus Abdul Rehman (1997 CLC 1819), wherein it has been laid down that it was lawful and permissible to defeat the right of preemption by any legitimate means or device of exchange of immovable property.
8. The upshot of the above discussion is that the suit has been rightly dismissed by the learned trial Court and impugned judgment and decree passed by the learned appellate Court is not sustainable in law. Hence, the same is set aside and the judgment and decree passed by the learned trial Court is upheld. This revision is disposed of accordingly.