This judgment shall decide C.R. No, 2071-07 and C.R. No, 207207, as common questions are involved.
2. The distinguishing facts an as follows:--
(i) In the matter of C.R. No, 2071 the respondent vide mutation of Exchange No, 1120 acquired land measuring 33 kanals 8 marlas. The case of the petitioner was that he had in fact purchased the land for Rs, 2,50,000/-.
(ii) In the matter of C.R.No, 2072/07 vide exchange Mutation No, 1123 attested on 223.03 the respondent acquired land measuring 8 kanals 11 marlas. The case of the petitioner was that he purchased the land for Rs, 80,000/-.
Both the suits were filed on 21.7.03. The petitioner claimed to be a Shane-Shareek. Khalit and Jar.
The performance of talbs was pleaded in both the cases. The respondent filed written statements insisting that he has acquired the land by exchange and denied the other allegations. Following issues were framed in the said cases:--
1. Whether the plaintiff made valid talabs as required by law? OPP
2. Whether the plaintiff has got superior right of pre-emption qua the defendant? OPP
3. Whether transaction was sale against consideration of Rs, 2,50,000 (Rs, 80.000/- .in the other case) and that it was shaped as exchange just to avoid pre-emption right of plaintiff? OPP
4. Whether the plaintiff has got no cause of action? OPD
5. Whether the suit is under valued for purpose of Court fees? OPD
6. Whether the defendant is entitled to special costs? OPD
7. Relief.
Evidence of the parties was recorded. Under Issue No, 2 the learned trial Court found that the petitioner has a superior right of pre-emption being co-sharer. Under Issue No, 3 the transaction was found to be an exchange while under Issue No, 1 it was found that the petitioner had failed to prove Talb-e-Muwathibat. Issues No, 4 and 6 were answered against the respondent. The petitioner filed first appeal. A learned Additional District Judge. Hafizabad, did not address himself to the question of Talb-e-Muwathibat at all. The matter of Talb-e-Ishhad was also discussed a bit but not concluded. However; findings in the matter of nature of transaction were affirmed. The appeals were dismissed on 20.7.07.
3. Learned counsel for the petitioner contends that both the learned Courts below have misread rather failed to read evidence on record while dealing with the nature of the transaction. It is apparent on the face of record that exchange was a disguise. According to him the land allegedly given in exchange ultimately came to the wife of the respondent. He also questions the findings of the learned Courts below in the matter of talbs. Learned counsel for the respondent, on the other hand, contends that in the absence of any evidence that consideration was paid other circumstances would be of no avail in the matter of determining the nature of transaction. He, however, agrees that the matter of talb has not been duly adjudicated upon by the learned Additional District Judge.
4. I have gone through the copies of the records appended with these civil revisions, with the assistance of the learned counsel for the parties. In both the plaints it was categorically stated that it was sale for a consideration and exchange is fictitious. The possession never changed hands.
The respondent, on the other hand, asserted that it was a bona fide exchange Evidence was led by the petitioner. Muhammad Mansha, petitioner appeared as PW-3 in both the cases and slated that the possession of the land allegedly given in exchange remained with respondent and he got it transferred back in the name of Sana Ullah the husband of his sister, Rana Shahbaz Khan, PW-4 made a similar statement and stated that the land was first got transferred in favour of Sana Ullah and now is in the name of wife of the respondent. To the similar effect is statement of Muhammad Afzal, PW-5. Although in cross-examination it was suggested to these witnesses and they have admitted that no consideration changed hands in their presence. However, the remaining averments were not questioned at all. In rebuttal the respondent appeared as DW-1: He admitted that Sana Ullah is the son of maternal 'uncle as also the husband of his sister. When confronted he stated that who does not know that the land was transferred back first to Sana Ullah and then to his wife. The transfer in favour of Sana Ullah is evidenced by registered sale-deed Ex.P9 in both the cases while in favour of Mst. Hameedan Begum wife of the respondent by means of mutation Ex.P 10 in both the cases.
5. Learned counsel for the respondent contends that a large area was transferred back after considerable period of time and as such the same would not derogate from the factum of exchange. It is true that mutations of exchange were attested on 22.3.03 while the land was transferred in favour of Sana Ullah vide Ex.P9 dated 28.4.04 and then in the name of wife of the respondent vide mutation Ex.P10 attested on 7.2.06. However, as noted by me there are some specific pleadings and then evidence was led and the respondent appeared in the witness-box after the said evidence had been recorded. He did not offer any explanation as to how the land ultimately came back to his wife. On the other hand, he simply expressed ignorance which is not sufficient rebuttal of the said oral as well as documentary evidence. Similarly in the matter of possession neither the PWs were cross-examined nor any rebuttal was led. In the case of Mst. Miraj Bibi v. Mst. Azim Khatoon and others (1997 SCM R 1892) it was held by the Hon'ble Supreme Court that to prove passing of consideration in cash in the case of sale disguised as exchange is not absolute rule and it was further held that to prove distinction between device and disguise evidence led by the parties including circumstantial has to be looked into.
6. The impugned judgments are completely silent vis-a-vis the said significant aspect of the matter, which remained totally unexplained by the respondent. I, therefore, do hold that the transaction is of a sale and in the absence any evidence to the contrary sale price is one mentioned in the plaint as also in the evidence. The findings of the learned lower Courts on Issue No, 3 in both the cases are accordingly reversed and issue is answered in the affirmative.
7. Finding regarding superior right of pre-emption was not challenged in the course of hearing of first appeals whether in these civil revisions, the same is accordingly affirmed. This leaven Issue No, 1 pertaining to talbs, both the learned counsel are agreed that the learned appellate Court did not properly adjudicate upon the said aspect of the matter. Both the civil revisions are accordingly allowed. The result would be that the first appeals filed by the petitioner shall be deemed to be pending. The parties shall appear before the learned District Judge, Hafizabad, who will requisition the record and proceed further himself or entrust the cases to a learned Additional District Judge, who shall hear the parties, examine evidence on record and decide Issue No, 1 pertaining to talbs a fresh in accordance with law. In case Issue No, 1 is found in favour of the petitioner the decree shall be passed in both the cases with requisite direction and in case it is answered against the petitioner the suits shall be dismissed. No order as to costs.
A copy of this judgment be immediately remitted to the learned District Judge. Hafizabad.