MIFTAH UD DIN KHAN, J.---Petitioner Said Muhammad has lodged the present revision petition under section 115 CPC against the judgment and order dated 12-5-2005 of the learned Additional District A Judge Haripur whereby the appeal of the present petitioner against the judgment and decree dated 23-5-2002 passed by the learned Civil Judge Haripur was dismissed.
2. The brief facts of the case are that the present petitioner instituted a preemption suit in respect of land measuring one Kanal in Khasra No,2313 situated in village Gamawan District Haripur transferred vide mutation No,5050 dated 19-7-1999 in favour of the respondent. The petitioner alleged in the plaint that in fact the respondent purchased the suit property for a sum of Rs,8000 but the transaction has been given the colour of gift mutation in the impugned mutation. The petitioner after getting knowledge through one Muhammad Aslam on 22-7-1999 exercised the right of Talbs and there after instituted the present suit.
3. The suit of the petitioner was contested by the respondent by submitting his written statement.
The learned trial Court framed nine issues from the pleading of the parties. After recording evidence of the parties on the above issues and hearing the learned counsel for the parties, the learned Civil Judge Haripur vide judgment and decree dated 23-5-2002 decided issues Nos.1, 3, 5, 6 and 10 in favour of respondent while issues Nos. 2, 4, 7, 8, in favour of the present petitioner and consequently dismissed the suit of the present petitioner. The petitioner preferred an appeal which was heard by the learned Additional District Judge-II Haripur which was also dismissed on 12-5- 2005. Aggrieved from the concurrent findings of both the Courts below, the petitioner has filed the present revision petitions.
4. The learned counsel for the petitioner contended that there is no blood relationship between the respondent and the donor of the gift and they were having different caste and this fact was proved on the record through cogent and confidence inspiring evidence that the transaction in favour of the respondent was in fact sale and not gift but both the Courts below in their concurrent findings have wrongly and illegally appreciated the evidence and non-suited the petitioner on the basis of discussion on issue No 3. He placed reliance on 1987 SCMR 1277, 1996 CLC 902, 1994 SCMR 1836, AIR 1931 Oudh 425, PLD 2003 Pesh. 189 in support of his above contention.
5. The learned counsel for the respondent contended that the petitioner has got no right to challenge the gift mutation as none of the legal heirs of donor Khani Zaman have questioned the validity of gift mutation or supported the claim of petitioner in this connection. He further submitted that onus of proof was on the petitioner to prove through cogent and confidence inspiring evidence that the transaction is in fact sale and that the sale consideration has changed hands but the petitioner has not produced any evidence in this regard and has relied upon the hear-say evidence in this connection, therefore, both the Courts below have rightly dismissed the suit of petitioner. He placed reliance on 2004 CLC 1884, PLD 1988 Pesh. 126, 1998 SCMR 2124 in support of his above contention.
6. Before entering into discussion regarding appraisal of evidence made by both the Courts below, I would like to take up the matter of burden of proof of the parties, in respect of the matter in controversy between the petitioner preemptor and vendee respondent. Admittedly, gift Mutation No,5050 Exh. P.W.2/1 has been attested in favour of respondent vendee which transaction has been preempted by the petitioner by claiming the same to be sale transaction. Cause of action in pre- emption suits arise out of sale transaction and the onus to prove the cause of action as well as to prove that transaction in question is to gift but sale, is on the petitioner pre-emptor. The word sale has been defined in section 2(d) of the N.-W.F.P. Pre-emption Act 1987 which is reproduced as follows:- "sale" means permanent transfer of the ownership of an immovable property in exchange for a valuable consideration and includes transfer of an immovable property by way of Hiba-bil-Iwaz or Hibabil-Shart Al-Iwaz but does not include: -
(i) transfer of an immovable property through inheritance or will or gift other than Hiba-bil-Iwaz or Hibabil-Shart al-Iwaz.
7. The petitioner pre-emptor in his plaint has specifically alleged that Khani Zaman sold the suit property to the respondent for a sale consideration of Rs,8000 and he was informed by one Master Muhammad Aslam regarding the aforesaid transaction. Thus the onus to prove these allegations was heavily on the petitioner preemptor as required under Articles 117 and 118 of the Qanun-e- Shahadat which are reproduced below:--
117. Burden of proof---(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he assets, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
118. ---The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
8. The petitioner pre-emptor in support of the above allegations has produced Muhammad Abbas Patwari Halqa P.W.2 petitioner himself as P.W.4 Gulab Khan P.W.5 and Master Muhammad Aslam P.W 6 Patwari Halqa Muhammad Abbas while appearing as P.W.2 in his statement during cross- examination admitted that the suit transaction is a gift and neither any entry of sale consideration has been made nor any transaction of sale has taken place. Petitioner said Muhammad P.W.4 in his statement during cross-examination admitted that respondent has not purchased the suit property but obtained through gift. He further stated that regarding the sale consideration of Rs,8000 he was informed by the people of village a clear departure from assertion in his plaint.
Gulab Khan P.W.5 in his statement during cross examination admitted that no sale transaction has taken place in his presence and that he was told by one Aslam regarding sale consideration of Rs 8000.
' The aforesaid Aslam while appearing as P.W.6 admitted during cross-examination that he was not present at the time of sale transaction and that he has no knowledge that on what sale consideration the property has been transferred. It is, thus clear from the evidence produced by the petitioner preemptor that he has not at all discharged the burden of proof in respect of the sale transaction.
9. In the present case, validity of gift has been challenged by the petitioner preemptor who is a stranger and a third person, therefore, the burden of proof would be on the petitioner pre-emptor and not the beneficiary of transaction. The principle that beneficiary of gift has to prove the same cannot be applied in the present case. In this connection reference may be made to 2004 CLC 1884, 2007 MLD Pesh. 811, 1988 MLD Pesh. 126 and 2004 CLC Lahore 1884.
10. The case law relied upon by the learned counsel for petitioner is of no help to the petitioner in the present case because the case has to be proved on the strength of evidence led before the Court and not on the basis of precedents of the Courts. In 1987 SCMR page 1277, seven witnesses were produced by the respondent in respect of sale transaction while a single witness has not supported the claim of the petitioner in the present case. Similarly, in AIR 1931 Oudh 424, there were two deeds executed mentioning sale consideration and evidence regarding sale transaction was produced while in the present case, there is no such evidence. The other authority relied upon by he petitioner is 1996 CLC 902. A huge property was transferred and six sons of the donor were deprived and donor appeared as a witness and has not supported the factum of gift which is not applicable to the present case. The other case law relied upon by the petitioner is PLD 2003 Pesh.
189 but this case law is direct in conflict with the provisions of sections 117 and 118 of Qanun-e- Shahadat and presumption under Article 129(g) should have been drawn against preemptor on whom the burden of proof lies and not against the vendee.
10A. The up shot of the above discussion is that petitioner preemptor has utterly failed to discharge the burden of proof to establish through cogent and convincing evidence that the exchange of money has taken place and the transaction in question is sale and not gift, therefore, both the Courts below while making proper appraisal of evidence have rightly dismissed the suit of the petitioner pre-emptor. The concurrent findings of both the Courts below neither suffer from misreading and non-reading of evidence nor any jurisdictional defect, hence be interfered with in the exercise of revisional jurisdiction by this Court. The present revision petition is, therefore, dismissed.