This regular second appeal has arisen out of a suit for pre-emption filed by the appellant, Hayat Ali and another, in respect of land measuring 8 kanals situate in Village Chak Qada, District Jhelum, alleged to have been purchased by Ghazan from one Mukhtar Hussain. The said Ghazan and Mukhtar Hussain were impleaded as defendants Nos. 1 and 2 in the suit and as respondents Nos. 1 and 2 in the present appeal, respectively. Ghazan died during the pendency of the appeal whereupon his legal representatives Gulab and others, were brought on the record.
2. The suit was resisted by the respondents (defendants) denying that the first respondent had purchased the disputed land from the second one. They pleaded that the first respondent had obtained the land by means of a gift made by the second respondent in his favour. It was, however, asserted by the appellants, that it was, in fact, the transaction of sale and not that of gift which had resulted in the acquisition of the land in dispute by the respondents and that it was with a view to defeating pre-emptive rights that the transaction was given the colour of an exchange. After framing the necessary issues it was held by the learned Civil Judge, Chakwal, District Jhelum, who was seized of the suit, that the transaction in dispute was a sale and not an exchange. The appellants' suit was, therefore, decreed by him. On appeal, the District Judge, Jhelum, however, reversed the finding of the learned Civil Judge. According to him, the appellants had not been able to establish that the transaction pre-empted by them was a sale. As a result, he accepted the appeal, set aside the judgment and decree of the learned trial Court and dismissed the suit brought by the appellants. They have, therefore, come up in second appeal to this Court.
3. The appellants produced for witnesses, including one of them. Namely, Irshad Ali. In rebuttal, the respondents examined three witnesses including the two respondents. Appearing as P. W. 1, it was stated by Irshad Ali (plaintiff-appellant No. 2) that originally the disputed land was owned by Mumtaz Hussain and others. They sold it to Mst. Said Begum and Fateh Din. That sale was also pre- empted by plaintiff-appellant No. 1, Hayat Ali. A rival suit for pre-emption was then filed by defendant-respondent No, 2, Mukhtar Hussain. Both the suits were decreed in a way that in the first instance Mukhtar Hussain was allowed to have the land on payment of Rs, 1300 and if he did not get that, it was to go to the first appellant for the said amount. Mukhtar Hussain, however, availed of the decree passed in his favour and got the land in preference to Hayat Ali. It was thereafter that the disputed transaction of gift was made by Mukhtar Hussain (defendant-respondent No, 2) in favour of defendant-respondent No. 1, Ghazan. It was further deposed by Irshad Ali that the said transaction was, in fact, a sale of the land in question for Rs, 1300. According to the said witness, Ghazan is a maternal uncle of Mst. Said Begum and the nephew (sister's son) of Fateh Din referred to above. It was also stated by him that the possession of the disputed land had not been delivered to Ghazan. When cross-examined, Irshad Ali stated that he was not present at the time of the alleged sale and that he was informed about it by Waris Ali and Samundar Khan. The said Samundar Khan and Waris All appeared as P. W. 2 and P. W. 3 respectively and stated that the second respondent had sold the disputed land to the first respondent and that it was within their view that the former was paid Rs, 1,300 by the latter as sale price of the land. According to them, the sale in dispute had taken place in their presence at a shop in the town of Gujar Khan, District Rawalpindi. P. W. 4 is Muhammad Akram Patwari who stated that according to the entries in khasra girdawari Ghazan was not in possession of the disputed land. During the course of cross- examination he, however, said that the land in question had been cultivated by Ghazan.
4. As regards the defence evidence, it was stated by the second respondent, Mukhtar Hussain as D.
W. 1 that Ghazan (respondent No. 1) was his kameen (village menial) and had served him in that capacity. It was, therefore, in lieu of his services that he had made gift of the land in dispute in his favour by means of registered deed, Exh. D.
3. It was also deposed by him that he had delivered possession of the land to Ghazan and did not receive any price for the land. When cross-examined, he disclosed that he posted as Assistant District Inspector of Schools, Gujar Khan. He started his career as a school teacher in 1951. At the time when he entered the witness-box he was drawing a salary of Rs, 280 per month. His starting pay as a teacher was Rs,
120. Accordingly to him, is about Gujar Khan is about 12/13 miles, through a kacha road, from village Chak Qada where the disputed land is situate. Enumerating the services rendered by the first respondent he said that he cultivated his land for batai and also looked after his buffalo. It was also added by him that he had not made any gift in favour of any other person in the village in lieu of the services rendered by him. He said that in addition to the land in dispute', he had 16 kanals of land in village Chak Qada and the rest of his land was in village Kolian. D. W. 2, Muhammad Banaras is a marginal witness of the registered gift deed, Exh. D.
3. It was stated by him that no sale price for the disputed land was paid in his presence. When cross-examined, he said that he did not know if Ghazan had rendered any service to Mukhtar Hussain. The last witness of the respondents is Ghazan (respondent No. 1) who appeared as D. W.3. He stated that the disputed transaction was a gift made by the second respondent in lieu of his services and that it was not a sale. When subjected to cross-examination he said that he cultivated the land of Mukhtar Hussain and got half share in the produce thereof. It was vaguely stated by him that he had been serving Mukhtar Hussain but did not spell out the nature of the services rendered by him. It was admitted by him that before the transaction in dispute the land involved in the present case was sold by Mumtaz Hussain and others in favour of Mst. Said Begum 'and Fateh Din. He, however, denied his relationship with Mst. Said Begum and Fateh Din.
5. As indicated in the beginning, the appellants' suit was decreed by the learned trial Court by holding that the transaction in question was actually a sale. The circumstances which weighed with the learned Civil Judge for reaching that conclusion find mention in the following passage of his judgment "Now we are to see the circumstantial evidence about this issue. The facts admitted by Mukhtar Hussain while appearing as D. W. 1 may be stated thus. His father died on 14-6-1943. He is the only son of his parents. He started his career as a school teacher on 2-7-1951 at the pay of Rs, 120 p.m.
He has twenty eight kanlas of land only. He has for children, one wife and a mother as his dependents, who own no property and they have no independant source of income. The present pay of Mukhtar Hussain is Rs, 280 p.m. He purchased a plot for the construction of a house at Gujar Khan near about the time when the impugned transaction was affected. He has no brotherhood in village Chak Qada where the land is situated. These facts clearly show that Mukhtar Hue. In is not a man of superfluous wealth as compared to his needs. He is posted at Gujjar Khan where he has purchased a residential plot. He is putting up in a rented house and , has not been able to construct his own house. He has for children. He must be having an ambitious plan for their education being an educated person himself. He has six dependents. The income from his 28 kanlas of land must be very small. I find that Mukhtar Hussain has a meagre income in the face of his needs. This is the status of the so-called donor, who is not an ambitionless person. Now I take up the status of Ghazan, the alleged donee. According to his statement he is a sonless person owning 20 kanals of land which he has inherited from his forefathers. He has been a cultivator throughout his life. D. W. I has stated that Ghazan has been rendering no service to him after he joined service on 2-7-1951 and that before that he used to cultivate his land on batai and look after his buffalo. D.
W. 3 has not detailed the services allegedly he has been rendering to Mukhtar Husain. Keeping in view the status of Ghazan defendant No. 1 the alleged vendee, it is not probable that he would have been rendering his services to Mukhtar Husain. It is improbable that Mukhtar Husain made a gift of his land measuring 8 knalas on 14-1-64 to compensate Ghazan for the services allegedly rendered to him before 2-7-1951. Mukhtar Husain being an educated person, it appears has a desire to adopt urban life as he has purchased a residential plot at Gujjar Khan. His interest in village Chak Qada is fadding away. He is not expected to make investment in this village by gifting land to his kameens because it is not probable that he will get any service from them in future. Ghazan is a cobbler by caste and is not related to Mukhtar Hussain. From the above discussion I find that Ghazan has been rendering no service to Mukhtar Hussain and that he had no motive to make the gift of his- land in his favour."
In recording this finding the learned Civil Judge had relied on Chiragh Din v. Allah Din and another (1).
6. The main reason for which the learned District Judge had taken a contrary view was that there could be no sale without the passing of consideration and since the appellant had failed to prove that any price was paid by the first respondent for the land in dispute it could not be treated as sale. For this proposition he relied on Ali Muhammad v. Malik Sanwal and others (2).
7. Learned counsel for the appellants contended that the case of All Muhammad was distinguishable on facts inasmuch as the cited case related to an exchange and not a gift. Besides relying on the case of Chiragh Din referred to by the learned Civil Judge, he invited my attention to Haji Said Muhammad Karam Shah v. Noor Illahi Khan and another (3) to contend that it was difficult to prove the passing of consideration and, therefore, the Court could, in view of the surrounding circumstances, determine the true character of a transaction which is claimed to be a sale but appears to be a transaction of different character. According to learned counsel for the appellants, there was ample evidence on the record to show that the transaction in dispute was, in reality, a sale.
8. In reply, it was pointed out by the learned counsel for the respondents that the evidence of the appellants did not inspire confidence inasmuch as according to the version put forth by the appellants' witnesses the transaction had taken place in a shop at Gujjar Khan, District Rawalpindi, although the disputed property was in village Chak Qada, District Jhelum.
9. Before going over to the other points involved in this case, I would like to find out if the first respondent had rendered any services to the second respondent so as to motivate him (second respondent) to make gift of the disputed land in his (first respondent's) favour. In this connection, the two respondents had simply said that the first respondent had been cultivating the land of the second one on batai basis. Thus the first respondent was duly rewarded for tilling the land of the second one and, therefore, its cultivation could not be treated as a service for the purpose of making a gift. The only other service hinted at by the second respondent was that the first respondent looked after his buffalo. This is a bald statement of the second respondent which was not corroborated by the first respondent either. The statements of the two respondents reveal that the second respondent remained posted at different stations in connection with his employment. It is, therefore, difficult to believe that he was having a buffalo in the village when he was himself away from the village. The only witness examined by the respondents other than themselves was Muhammad Banaras (D. W. 2) who did not know if the first respondent had rendered any service to the second one. I, therefore, share the view taken by the learned trial Court that the respondents had failed to establish that there were any services rendered by the first respondent qua the second one for which the latter would have made the gift in dispute in favour of the former.
10. Now, I proceed to examine, if the transaction in dispute was, in fact, a sale. There are depositions of Samundar Khan (P. W. 2) and Waris Ali (P. W. 3) to the effect that the transaction was finalised in their presence and that it was a sale inasmuch as respondent No. 1 had paid Rs, 1300 to respondent No, 2 as price for the land in question. There is nothing against their testimony except that, according to them, the transaction was gone through at Gujjar Khan, District Rawalpindi, whereas the disputed land is in village Chak Qada, District Jhelum. This, to my mind. Is not a sound reason for discarding their evidence. It is in the statement of respondent No, 2 that village Chak Qada is at a distance of 12/13 miles from Gujjar Khan. It is a matter of common knowledge that the villagers go to the nearby towns for making purchases, etc. There is nothing on the record to show that at or about the aforesaid distance there was any town in the District of Jhelum where the above witnesses could go for making purchases. Needless to say that there are several villages in certain districts which are nearer to the towns/cities of adjoining districts than the towns/cities of the districts in which such villages are situate. For instance, village Ferozewala, which has recently been declared as head-quarters of a Tehsil of District Sheikhupura, is in the vicinity of the city of Lahore, constituting part of Lahore District, but is far away from the city of Sheikhupura. Therefore, it is not improbable that the said two witnesses were present in Gujjar Khan at the time of the making of the transaction in dispute.
11. The testimony of Irshad Ali (P. W. 1), Samundar Khan (P. W. 2) and Waris Ali (P. W. 3) deserve to be relied upon because there are a number of circumstances indicating that the transaction in dispute was a sale. Some of these circumstances have been enumerated in the extract from the judgment of the learned trial Court reproduced above. In addition, there is the background of pre- emption suit as a result whereof the second respondent had secured the disputed land which had been purchased by Mst. Said Begum and Fateh Din. According to the appellant's evidence Mst. Said Begum and Fateh Din were related to the first respondent. This relationship was denied by the first respondent, but it was admitted by the second respondent that like the first respondent they were cobblers. The second respondent is a Syed by caste. It seems that the second respondent had brought the suit for pre-emption with a view to helping the cobblers of his village to retain the land.
Had it not been so, he would not have parted with the disputed land and that too, according to him, without charging anything therefor, after acquiring it through a pre-emption suit, As indicated above, the second respondent and the first appellant had brought rival suits for pre-emption in respect of the disputed land when it was earlier sold in favour of two members of the cobbler community, namely, Mst. Said Begum and Fateh Din, with the result that the second respondent got the land in preference to the first appellant. I am, therefore, inclined to believe that the transaction in dispute was shown as a gift and not a sale so that the cobbler community may not lose the land in consequence of a fresh suit for pre-emption.
12. As for the case-law cited at the Bar, in the case of Chiragh Din, decided by the Punjab Chief Court, which supports the view taken by the learned trial Court, the deed of transfer in respect of which pre-emption was sought, was in terms one of gift and according to these terms the gift (which comprised 12 Marlas 2 marlas of land) was made by Nathu as some return for the services rendered to him at various times by his near kinsman and very good friend Chiragh Din, and the deed also stated that the value of the property was Rs, 1,000. It was found, as a matter of fact, that Chiragh Din was not in any way related to Nathu to whom he was in no way proved to be beholden, that Nathu had 6 sons of his own and was on good terms with them and that he was by no means a man of superfluous wealth. Both the lower Courts found that the transfer was really one of sale. It was held that on the facts found the lower Courts were fully justified in holding that the transfer was really one of sale; though disguised as a gift. Similar view was taken in the Full Bench judgment delivered by the Punjab Chief Court in Tara Chand v. Baldeo and others (1) which is referred to in the case of Chiragh Din. It was also ruled by the Peshawar Bench of the erstwhile High Court of West Pakistan in the case of Haji Said Muhammad Karam Shah that in a case like the present one it is not possible to produce evidence relating to the actual passing of the consideration. It is true that in Ali Muhammad's case, relied upon by the learned District Judge and the learned counsel for the respondents, it was held by the Peshawar Bench that for establishing a sale it was necessary to show the passing of the consideration but since that case related to the transaction of an exchange and not that of gift it has little bearing on the case in hand. I would, therefore, with respect, follow the view expressed in the cases of Chiragh Din, Tara Chand and Haji Said Muhammad Karam Shah and hold that in appropriate cases the Court, can treat a gift as a sale even though the actual passing of the consideration is not proved.
13. In view of the evidence produced by the appellants and the circumstance brought out on the record, I am unable to affirm the view taken by the learned District Judge and agree with the learned trial Court that the transaction in dispute was actually a sale and could, therefore, be pre- empted by the appellants.
14. No other point was agitated by the learned counsel for the appellants.
15. Resultantly, I accept this appeal with costs, set aside the judgment and decree of the learned District Judge and restore the judgment and decree passed by the learned trial Court in favour of the appellants and against the respondents.
(1) 70 P R 1916
(2) PLD 1961 Pesh. 62
(3) PLD 1962 Pesh. 44
(4) 117 P R 1890 revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.