ORDER MUHAMMAD KHALID MEHMOOD KHAN, J.---The petitioner Nizam Din tiled a suit for possession through pre-emption claiming that property detailed in Para 1-A of the amended plaint was purchased by respondent No.4 against consideration of Rs.2,00,000 vide Mutation No.55 attested on 11-2-998 but for depriving the petitioner of his right to preempt the sale he showed the sale as exchange. Petitioner claimed his superior right over the pre-empted land as Shafi-e-Sharik and Shafi-e-Jar. He claimed that on 12-2-1998 at about 4-00 p.m. He came to know through Sultan Mehmood son of Muhammad Ali in the presence of Syed Iqbal Hussain Shah about the pre- empted sale. He immediately announced to preempt the said sale. He got prepared two notices which were attested by two truthful witnesses and sent the same to respondent No.4 through registered A.D at his two different addresses in terms of section 13 of Punjab Pre-emption Act being `Talb-i-Ishhad'. The respondents controverted the averments of plaint and denied that the preempted sale is not a sale but it is an exchange. Respondents further denied the petitioner's right of pre-emption. Out of divergent pleadings of the parties the learned trial Court framed the following issues:-- "ISSUES. (1) Whether the disputed transaction is in fact a sale but it has been given colour of exchange, if so, its effect? OPP
(2) If Issue No.1 is proved, whether the plaintiff has superior right of pre-emption qua the defendants? OPP
(3) Whether the defendants purchased the suit-land against Rs.2,00,000 and the same amount was fixed in good faith and paid actually, if so, its effect? OPP
(4) Whether the plaintiff has performed necessary requirements of Talbs ? OPP
(5) Whether the plaintiff has no cause of action to file this suit? OPD
(6) Whether the plaintiff is estopped to file this suit by his word and conduct? OPD
(7) Whether the suit is not maintainable in its present form? OPD
(8) Whether the suit has incorrectly been valued for the purposes of court fee, if so, its effect? OPD
(9) Relief
2. Both the parties adduced their evidence both verbal as well as documentary. The learned trial Court vide judgment and decree dated 26-9-2003 dismissed the suit. The petitioner assailed the said judgment and decree through an appeal which too was dismissed vide judgment and decree dated 1-4-2010, hence, the present petition.
3. Learned counsel for the petitioner submits that the judgment and decree of both the courts below are against facts and law. He further submits that the judgments of both courts below suffer from non-reading and misreading of record. He submits that learned trial Court was bound to determine the real nature of transaction sought to be pre-empted under section 5 of the Punjab Pre-emption Act, 1991. He further submits that the judgments of both courts is in violation of Order XX, Rule 5, C.P.C. He adds that the appellate court's judgment is not a judgment in the eye of law, the necessary ingredients of judicial pronouncement are not available in the said judgment. He relies on Mian Muhammad v. Allah Ditta (PLD 1993 Lahore 84), Ali Muhammad v. Muhammad Hayat and others (1982 SCMR 816), Mst. Fatima Bibi and 11 others v. Mst. Rahim Bibi and 3 others (PLD 1999 Lahore 128) and Hyderabad Development Authority v. Abdul Majeed and others (PLD 2002 Suprema Court 84).
4. Learned counsel for the respondents supports the judgments of both the courts below. He submits that onus to prove the transaction as exchange or sale was upon the petitioner and he has failed to discharge the said onus and as such the judgment of both the courts below are based on evidence produced by the parties.
5. The main dispute between the parties in the present suit was whether the land pre-empted by the petitioner is a sale or exchange. The stance of the petitioner is that one Sultan Mehmood told him that respondent No.4 had purchased the suit-land from respondents Nos.1 to 3 against consideration of Rs.2,00,000. When Sultan Mehmood informed him about the said sale, Iqbal Hussain Shah was present. This means that petitioner's knowledge about the status of land is based on the information of Sultan Mehmood and he has no direct knowledge about the pre- empted transaction. Sultan Mehmood appeared as P.W.5., admittedly he is not the witness of transaction. Under the Punjab Pre-emption Act 1991 the transaction of sale is pre-emptable. P.W.S s information about the transaction is based on the information of the brother of respondent No.4.
P.W.5 deposed that Ashiq Hussain informed him that his brother respondent No.4 has purchased the land from respondent No.3
6. The mutation of pre-empted sale is a mutation of exchange which shows that respondent No.4 exchanged his land with respondents Nos.1 to 3 situated at Kotli Shamas. DW-3 confirmed the said fact while appearing in the witness box that mutation of exchange was attested in `Jalsai-Aam' and no consideration was paid. Ashiq Hussain the informer of P.W.5 appeared as DW-4. He denied the fact that he ever told to Sultan Mehmood about the sale of pre-empted transaction so the information of Sultan Mehmood proved to be false. When Ashiq Hussain has denied the fact of sale so the first step of `Talb-i-Muwathibae stands negated. The Mutation No.55 placed on record shows that it is a mutation of exchange. The petitioner has not produced any document or any witness for establishing the nature and status of preempted transaction. The attesting witnesses of mutation appeared and they deposed that it is a mutation of exchange and not sale.
7. The argument of learned counsel is that the nature of land exchanged with each other shows that it was a sale transaction. One property is urban property and the other one is agricultural, hence it is not believable that transaction in dispute is exchange. And sale but it is a proven fact on record that both the parties have exchanged the possession of their respective properties and they are enjoying their respective possession as were from the date of attestation of mutation. The petitioner has failed to produce any evidence showing that underlying agreement of exchange Mutation No.55 is to defeat the right of petitioner of pre-emption. He has not produced any witness from the locality where the urban property situates showing the value of the property exchanged.
His oral assertion is not sufficient for proving the said fact.
8. Under section 2-D(3) of the Punjab Pre-emption Act, 1991 the exchange of agricultural land does not fall under the definition of sale. To prove that transaction as sale, the reliable and cogent evidence is required which is lacking in this case, hence in the absence of the proof that preempted transaction is sale, the question of Talb-i-Muwathabat has become secondary.
Although the Talb-i-Muwathibat has not been proved and even for the sake of argument it is admitted that said Talb has been proved then the suit is bound to fail. The learned appellate Court has not committed any irregularity while giving its findings on Issue No. 1 . The argument of learned counsel for the petitioner that finding on Issue No.1 is without any reason as the learned appellate Court has not discussed the evidence placed on record. The perusal of Issue No. 1 Shows that the learned appellate Court has scanned the evidence available on lower court record and he just agreed with that, however, if F the appellate Court was of the view that the findings of learned trial Court are not based on evidence then it was the duty of the appellate court to give reasons but when the learned appellate Court is agreeing with the findings of learned trial Court in my opinion it was necessary for him to give any reasons further. The learned appellate Court has discussed the evidence of P.W.5 and also agreed with the conclusion drawn by the learned trial Court on the findings of Issue No.1. In a suit for pre-emption Talbs under section 13 has to play the main role and out of Talbs, Talb-i-Muwathibat if not proved then entire suit fails. In the present case, both learned courts below came to the conclusion that Talb-i-Muwathibat' has not been proved. The informer of petitioner has gained knowledge from Ashiq Hussain. When Ashiq Hussain appeared being witness he denied that fact and as such it is proved beyond any shadow of doubt that Sultan Mehmood wrongly informed the petitioner and the petitioner acting on the wrong information of Sultan Mehmood filed the suit and as such `Talb-i Muwathibat' was not proved as well as the pre-empted sale was proved as exchange. In my humble view the learned courts below have not committed any illegality or irregularity while passing two judgments. The learned trial Court has discussed each and every aspect of the case in detail and the learned appellate Court also agreed with findings of Civil Court and has come to the conclusion that he has nothing to and and as such the appellate court's findings on Issue No.1 are in accordance with law.
9. In view of above, this revision fails and is dismissed.