' This judgment shall dispose of Civil Revision No, 1837-D of 1980 and R. S. A. No, 790 of 1980, as common questions of law and fact are involved therein.
2. The relevant facts of the case are that Hamad Yar and Muhammad Yar, sons of Haji Mabram petitioners, herein,, 15-11-1977 through registered sale deed purchased land measuring 50 kanals,"6 marlas, situated in village Shamma, Tehsil Mailsi, District Vehari. Muhammad Aslam respondent on 8-11-1978 instituted suit for possession, of the disputed land through pre-emption claiming that he was owner in the village and had a superior right of pre-emption, than the vendees who were strangers in the village. The vendees, however on 14-10-1978 that is, about a month prior to the institution of suit by means of a registered gift deed got one kanal of land situated in the same village from Ranjha their brother-in-law, in order to improve their status and for defeating the right of pre-emptors. This transaction was also pre-empted by Muhammad Aslarn respondent, on the ground that it was in fact a transaction of sale for a sum of Rs, 500 managed by the petitioners to defeat his right of pre-emption.
' The learned trial Judge vide his judgment dated 7-5-1980, dismissed both the suits holding that the alienation of land through registered gift deed was a valid transaction. The petitioners improved their status before the institution of the suit, defeated pre-emptor's right through valid device. Muhammad Aslam respondent challenged the aforementioned judgments and decress in appeal and the learned Additional District Judge, Vehari, on 19-5-19E0 accepted the appeals holding that the transaction relating to one kanal was of sale and not gift. He decreed the suits in favour of the respondent.
3. Learned counsel for the petitioners contended that the finding of the learned Additional District Judge to the effect, that the transaction of gift was not complete because possession of the disputed land was not delivered to the donees, was contrary to law ; because a stranger to deed of gift, was precluded from challenging gift on the point of the delivery of possession.
' It was also submitted that the vendee could improve his status to defeat the right of the pre- emptor before the institution of suit. It was pointed out that in the instant case the petitioners being closely related to the donor adopted a valid device to defeat the right of pre-emptor. It was further argued that the possession of the disputed land was delivered to the petitioners because the donor himself appeared in the witness-box and acknowledged the same. The land alienated through gift being a portion of the joint Khata, the delivery of possession thereof became complete when it was acknowledged by the donor in the registered gift deed and admitted at the trial that he had been paying the landlord's share of produce to the donees after the alienation of land in their favour. Learned counsel further submitted that the first Appellate Court not only misread the evidence on the record but had drawn incorrect conclusions therefrom, which being contrary to law are liable to interference in the revisional jurisdiction of this Court.
4. Learned counsel for the contesting respondents raised preliminary objection to the effect that R.
S. A. No, 790 of 1980 was not competent as the jurisdictional value of the suit property viz. (50 kanals 6 marlas) was Rs, 10,200 only. He relied on the provision of clause (b) of section 102, C. P. C.
Amended by Ordinance X of 1980 whereby a suit, the value of the subject matter whereof does not exceed Rs, 50,000, no second appeal would be competent.
' It was however submitted that this appeal be considered as revision petition; ' It was next submitted that the learned first Appellate Court had rightly reversed the judgment and decree of the learned trial Court on the ground that the possession of the land in dispute was not delivered to the donees as it was a condition precedent for validity and completion of the transaction of gift. It was also submitted that the transaction ostensibly being of gift was in fact sale as such pre-emptible by the respondent. It was also submitted that the finding of fact even if erroneous cannot be questioned in revisional jurisdiction of this. Court.
5. Learned counsel for the petitioners in rebuttal conceded that in view of the value of the disputed property for the purpose of jurisdiction being Rs, 10,200 only reversion petition against the impugned judgment was competent under section 102 (b), C. P. C. As amended by Ordinance X of 1980.
6. I have considered the arguments advanced by learned counsel for the parties and perused the evidence on the record. The preliminary objection raised by the learned counsel for the respondent having substantial force in it, was not contested by the learned counsel for the petitioners and as is apparent from the amended provision of section 102, C. P. C., regular second appeal shall lie only if the jurisdictional value of the subject matter is more than Rs 50,000. , The value of the instant suit being admittedly less than I Rs, 50,000 the appeal shall be treated as revision and disposed of accordingly.
7. The judgment of the learned trial Court holding the transaction in dispute being gift was reversed by the loser Appellate Court only on the ground that possession of the disputed property was not delivered to the donees at the time of transaction or thereafter. The respondents admittedly being strangers to the transaction of gift could not assail the validity of the transaction on the ground that the possession of the land was not delivered to the donees. In this case the donees as well as the donor both stated at the trial that possession of the gifted property had been delivered to the donees. The respondent pre-emptor therefore had no locus standi to challenge the gift on the ground of the non-delivery of possession to the donees.
' In Fazal Ahmad v. Mst. Rakhi (1) it was held :- "As an ordinary rule of Muslim Law a gift is to be followed by delivery of possession, that is, the donor is to deliver to the donee whatever possession he has, but the objection as to delivery of possession is one which can be taken either by the donor himself or by his heirs and in a case where the donor is himself supporting the gift no effect can be given to an objection by a third party."
' Similarly in Dost Muhammad Khan v. Imam Bakhsh (2) this principle was re-affirmed as expressed in the words of D. F. Mullah under section 150 of Muhammadan Law :- "The question whether possession has been delivered is relevant only when an issue is raised between the donor or those claiming under him on one side, and the donee or those claiming under him on the other. A stranger cannot invoke the rule that the gift is bad because there has been no delivery of possession."
8. The next question which falls for determination is whether the transaction in dispute was sale and disguised as gift or a valid device adopted to defeat the right of pre-emptor. There is a marked distinction between a device and a disguise. It is only the evidence that the real nature and true character of the transaction is revealed. A disguise is resorted to contend the reality by a fictitious appearance whereas in a device the appearance of the transaction is not fictitious but a mode is adopted to defeat the right of pre-emption. In the instant case, the evidence on the record has proved that it was a transaction made between close relations to defeat the right of pre- emption. It cannot be concluded that the alienation of one kanal of land, in the circumstances of this case was sale in lieu of consideration. The c and vendor being close relations adopted valid device to defeat the right of pre-emption:
9. In this case the petitioners improved their status by legitimate method before the institution of suit and rightly relied by the learned trial Court to dismiss respondent's other suit as well. It is also noteworthy that the learned first Appellate Court had drawn inconsistent and incorrect inferences from the evidence on the record. P. W. 1 was admittedly at one time Manager of the respondents, to say that he was an independent witness and not partisan was wrong, on the face of it. Similarly P.
W. 2 not only contradicted P. W. 1 but he was merely a chance witness and his presence at a place to witness the transaction was -highly doubtful and his statement not worthy of reliance. The judgments of the learned Additional District Judge, {{FOOT NOTE}}
(1) PLD 1958 Lah. 218 (2) PLD 1971 Pesh. 150 {{FOOT NOTE}} ' Vehari are not sustainable being contrary to established principles of law as highlighted above and are liable to interference by this Court as envisaged under clause (c) of subsection (1) of section 115, C. P. C.
' For the .Reasons recorded above, these petitions are accepted with costs, the impugned judgments of the first Appellate Court are set aside and of the learned trial Court restored.