The revision petition in hand is against the judgment and decree passed by ADJ-I, Mardan dated 26.2.2011, whereby he maintained the judgment and decree passed by Civil Judge, Mardan dated 27.4.2010.
2. The brief facts are that the petitioners filed a suit for preemption of the suit land mentioned in the heading of the plaint on different grounds mentioned therein. In the plaint it is also alleged that disputed Mutation No. 459 dated 3.12.1998 is in fact a sale mutation but in order to ward off the right of pre-emption it was shown to be an exchange mutation.
3. Vendees-defendants contested the suit by filing written statement raising plea of exchange, which resulted in framing of ten issues.
4. The plaintiffs in support of their case examined eight witnesses while defendants produced only one witness.
5. After hearing arguments, the learned Civil Judge vide his judgment dated 27.4.2010 dismissed the suit.
6. The said judgment was assailed before the appellate Court in appeal, which was decided on 26.2.2011, by dismissing the same.
7. Feeling aggrieved, the revision petition in hand has been filed.
8. Learned counsel for the petitioners heard in motion. He submitted that the moot question in this case is as to whether the disputed mutation is of sale or exchange. He submitted that only those exchange transactions of property are exempted from pre-emption which are for the purpose of better management. According to the learned counsel the vendees-defendants have failed miserably to prove that the property was exchanged for better management. According to learned counsel, the factors involved for better management are missing, therefore, the suit was required to have been decreed because other necessary conditions have been fulfilled by the petitioners.
9. I have considered the arguments of the learned counsel and have also gone through the available record in the light of which my discussion is as under:-- 10.I would confine my discussion to the issue regarding the mutation as to whether it was a sale or exchange. The said dispute is covered by Issues No. 4 and 8, which are reproduced below:--
(4) Whether exchange Mutation No. 459 dated 3.12.1998 is in fact pre-emptable sale mutation?
(8) Whether the dispute in mutation is exchange mutation for better management of the property?
11.The mutation is on file as Ex.PW.2/1. Its contents reveal that through this mutation certain landed property has been exchanged for another property through Mutation No. 460. The other mutation is also available on file as Ex.PW.-2/2. It appears from both these mutations that the transaction in respect of the suit land is of not sale but exchange.
12. According to Section 2(d) only sale transaction would be preemptable and the sale defined therein means permanent transfer of ownership of immoveable property in exchange for a valuable consideration, but would not include certain transactions, which includes transfer through inheritance, gift etc: or a sale in execution of a decree or occupancy tenancy and exchange of agricultural land for better management. Section 2 (d) is reproduced below:-- "2. Definitions.--In this Act, unless there is anything repugnant in the subject or context,-- .
(a)..................
(b)..................
(c)..................
(d)"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 hiba-bil-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 hiba-bi-shart al-iwaz; (ii)a sale execution of a decree for money or of any order of a civil, criminal revenue or any other Court or a Revenue Officer of any local authority; (iii)the creation of any occupancy tenancy by a landlord whether for consideration or otherwise; (iv)exchange of agricultural lands for better management; and (v)transfer of an immovable property for a consideration other than valuable consideration, such as the transfer of any immovable property by way of dower or composition in a murder or hurt case."
13. The above provisions show that when an agricultural property is exchanged for better management, it would not include in the definition of sale. The exchange of agricultural immovable property is qualified. The condition is that it must be exchanged for a better management, so the exchange is a qualified one. The person claiming exemption must prove that he has acquired a property for better management. It is a settled principle of law that when an exchange is not for better management, it would be included in the definition of sale. The better management used in the section is unqualified and any transaction based on intention of better management would be exempted. Better management included the convenience of the parties, privacy and location of the property. A similar issue was brought before this Court. The Court in case of Muhammad Anwar Khan Kundi Vs. Abdur Rehman etc. reported in 2006 CLC 604 has held as under:-- "4. The provision contains in clause (d)(iv) of Section 2 of N.W.F.P. Pre-emption Act excepts the transaction of exchange for "better management" from the purview of the exercise of right of pre- emption. However, there is no restriction that such a transaction should be with a view of better management of the land or other immovable property already belonging to the vendee. The learned counsel for the petitioner relied on the case of Fazal Rehman V. Khursheed All 2004 CLC 359 in support of his contentions. It certainly contains the criteria for the better management but the said list is not exhaustive. It has been specifically held therein that "to define and interpret the term "better management" no hard and fast rule can be laid down". Since the said phrase is unqualified, therefore, any transaction based on the intention of better management shall be exempted irrespective of the fact whether it may be for the better management of the land already owned or for the better management of the property which could not be managed by the vendee or for the better management of other affairs including the convenience, privacy and location of the property. A person having property at a far-off place which could be properly managed, can be exchanged with another property which could be managed in a better manner in view of its location, accessibility or convenience. If the legislation has left a provision without any restriction or condition, the same cannot be supplied by interpretation and such an unqualified exemption shall be deemed to be applicable to all the possible modes of better management.
Therefore, if the vendee/defendant has sufficiently proved that the suit property was situated nearer to his house and could be managed in a better way whereas the property given in exchange could not be properly managed by him rather it could be appropriately managed by its transferee, it was a sufficient evidence and merely on the far-fetched interpretation, the transaction of exchange cannot be deemed to be pre-emptible."
14. If we examine the case in hand in the light of the above observations, we would safely reach to the conclusion that the dispute in mutation is of exchange and the transaction is for better management. The plaintiffs/petitioners have failed to prove that the impugned mutation was of sale. They have also failed that any sale consideration was passed. It is also proved by the vendees-defendants that the property was acquired through exchange for better management.
As discussed above, the plaintiffs-petitioners have miserably failed to prove that the impugned mutation was that of sale and not exchange. The learned counsel for the petitioner also could not establish that there is any irregularity/illegality or error in jurisdiction in the impugned judgments, therefore, the revision petition being without force is dismissed in limine.