JUDGMENT MIAN SHAHID IQBAL, J.---This civil revision, is directed against the judgment and decree dated 24-4-2003 whereby appeal was accepted with the result that suit was decreed.
2. Brief facts of the case are that respondents filed a suit for pre-emption in respect of land measuring 2-Kanal and 16-Marlas situated in Basawa Tehsil and District M.B. Din on 29-3-1995; through the said suit exchange Mutation No.1736 dated 30-11-1994. Was challenged. The present petitioners after service of 'notice tiled written statements in which preliminary objection was taken that instant suit for pre-emption is not maintainable against an exchange of disputed land.
3.. Out of divergent pleadings of the parties learned trial court framed 11 issues and thereafter, called parties to adduce evidence.
4. Plaintiff Ali Muhammad appeared as P.W.1., Muhammad Nawaz plaintiff appeared as P.W.2, Nazir Ahmed appeared as P.W.3, Muhammad Zaman appeared as P.W.4., Ghulam Rasool appeared, as P.W.5. And Nazar Muhammad appeared as P.W.6. On the other hand, Sultan Ahmed/defendant No.1 appeared as DW-1 whereas Muhammad Mansha/defendant No.2 appeared as DW-2.
5. The learned trial court after perusal of evidence and arguments of the parties dismissed the suit on 2-4-2002 thereby holding that since the plaintiffs have not been able to prove that it was not an exchange but sale, as such on the basis of decision on Issue No.1 suit was dismissed. As far as Issue No.4 was concerned, learned trial court held that plaintiffs had been able to prove Talb-e- Muwathibat and Talb-e-Ishhad as such issue was decided in favour of the plaintiffs, regarding Issue No.2 as no evidence was produced as such the same was decided against the plaintiffs.
6. Learned counsel for the petitioners submits that against the judgment and decree dated 2-4- 2002 present respondents filed an appeal on 27-5-2002 and the learned lower appellate court on 24-4-2003 thereby setting aside the judgment and decree dated 2-4-2002 passed by learned trial Court filially concluded that as the Mutation No.1736 was in actual a sale and not exchange, as such respondents have superior right of pre-emption and appeal was decided in favour of respondents.
7.Learned counsel for petitioners further submits that judgment . Of courts below at variance is violative of the provisions of Order XLI, Rule 31, C.P.C., as the same has been rendered without going into evidence of the case; the same has been passed on surmises which is not permissible under the law. Further submits that since the passing of consideration has not been proved, as such taking into consideration the face value of the transaction .Mutation No.1736 which is an exchange the same is to be accepted, in absence of any evidence. Reference is made to 1995 MLD 435 and PLD 1961 Peshawar 62. Learned counsel further submits that - only for the reason that on the same day subsequently the exchange land was transferred by way of sale basing opinion on the subsequent sale the earlier exchange should not have been held otherwise. Reference is made to PLD 1983 Peshawar 13, and 1972 SCMR 649.
8. Learned counsel for the petitioners further submits that even if there is concurrent finding of facts the same can be set aside if they are based on mis-reading, non-reading and mis-direction as well as on presumption and assumptions. Reference is made to 2008 SCMR 236. Finally, concluding his arguments, learned, counsel submits that judgment and decree passed by the learned lower appellate court be. Set aside and conclusion drawn since based on evidence by the learned trial court be accepted.
10. (sic) On the reverse, learned counsel for respondents while arguing the case, has submitted that in spite of the fact that learned counsel for petitioners have argued on the point of mis reading and non-reading of evidence but failed to point out the same on record as to what is the mis-reading or non-reading made by learned lower appellate court while reversing the findings of the learned trial court. Further submits that learned trial court while basing his opinion that P.W.4 and P.W.6 had no knowledge of passing of money, was erroneous on the ground that both the persons were the witnesses of notice, as far as Talb-e-Ishhad is concerned, as such there was no good reason for the learned trial court to have decided the matter on their so saying that they have no knowledge of the fact regarding payment of money to which they never made statement in examination;
11. Learned counsel for respondents further submits that subsequent transaction of sale made by present petitioners to Attique and Munir were made on the same day at the same moment, at the same time and in presence of vendees of earlier mutation, as such this immediate transaction casts shadow on the sale/ exchange by virtue of which property was got transferred. Reference is made to 1997 SCMR 1892. Further submits that exchange in actual was a disguise transfer which was sufficiently established from immediate subsequent sales, made by the parties, as such non- proving of transfer of consideration would not affect the malice and mala fide being manoeuvred in the shape of exchange. Further submits that non existence of provisions of Punjab Preemption Act 1991 would not be a bar for taking into consideration the facts in order to step over rights of the parties. Finally, concluding his arguments learned counsel for respondents submits that exchange was actually a sale which was determined by the learned lower appellate court, as such observations made by learned lower appellate court is to hold the field in view of the evidence,
12. Learned counsel for petitioners in reply to the arguments made by learned counsel for respondents submits that he had already submitted that learned lower appellate court did not even discuss the evidence on record. Further submits that subsequent vendees are not party to the proceedings, as such judgments referred to by the learned counsel for respondents are not applicable.
13. I have attended to the arguments advanced by learned counsel for the parties and with their assistance have also gone through the case-laws.
14. Firstly attending to the arguments of learned counsel for petitioners that judgment passed by learned lower appellate court is violative of Order XLI Rule 31, C.P.C. I have gone through the judgment, learned lower appellate court after proper appreciation of oral as well as documentary evidence on record has finally decided Issues Nos.1 and 4 in favour of present respondents thus the provisions of the said order have been properly applied to while passing the impugned judgment.
As far as the two judgments referred, to by learned counsel are concerned, in 1995 MLD 435 it has so been discussed that mode for determining whether the transfer was sale or exchange is to be taken on the face of it unless shown by some cogent evidence, other judgment PLD 1961 Peshawar 62, also speaks of the fact that circumstances indicating it must be' of a very strong character.
While keeping in mind both these judgments, I am of the opinion that learned lower appellate court while deciding the Issues Nos.1 and 4 has fairly kept in mind Exh.P-14 and Exh.P15 the two mutations having number 1736 dated 30-11-1994 and 1739 dated 30-11-1994 which were made on the same day. Hence, the exchange Mutation No.1736 and a subsequent sale by virtue of Mutation No.1739 fairly demonstrate strong and unbelievable fact that exchange was a disguise sale just to avoid pre-emption, therefore, both the judgments in the given circumstances would not apply in the present case.
15. The next submission made by learned counsel for the petitioners was that learned lower appellate court has based his opinion that as the exchange and sale since was made on the same day, as such it was sale, therefore, the learned lower appellate court reversed the findings on Issues No. 1 . While dis agreeing with the learned counsel for petitioners nature of transfer of exchange and its subsequent sale vividly demonstrate the fact that ultimate property was to be transferred to the purchaser of Mutation No.1739 and exchange was only made as a bridge in order to safe the parties from the alleged claim of pre-emption suit. The judgments referred to by learned counsel would not be of any benefit to him for the reason that same are not applicable on facts, as such they are distinguishable.
16. The next point raised by learned counsel for petitioners was that concurrent findings of fact which are based on misreading, non-reading and mis direction as well as presumption and assumption can be set aside and in that regard he referred to 2008 SCMR 236. There is no cavil to the proposition that mis reading, non-reading as well as judgment based on assumption and presumption can be looked into and its findings can be reversed. I may hold that learned lower appellate court while deciding the most important Issues No, 1 and 4 has rightly based his opinion on Exh.P14 and Exh.P15 which were two documents on the basis of which firstly they got exchange and after that property was then transferred through sale mutation.
Thus judgment is not based on non-reading, mis-reading assumption or presumption .1 The judgment referred to on this point is totally different as in the referred judgment application under section 12(2), C.P.C., was remanded with the observation to decide the matter after recording of evidence which factor is not available in the present case.
17. Reverting back to the arguments of learned counsel for respondents along with judgments referred to, there is no doubt with the two mutations which were made on the same day were finally intended to be concluded into a sale which in the first instance was manoeuvred in the name of disguise exchange. These arguments are supported by law laid down in 1997 SCMR 1892, relevant part is reproduced as under:- "----Failure of the pre-emptor to prove passing of consideration in cash in the case of sale disguised as an exchange or gift is not an absolute rule---where two mutations one of ostensible exchange and the other of sale ofm the land which vendor had got alleged exchange from "G" simultaneously, were attested on one and the same day in the same mutation proceeding in favour of and by this manner vendor did not come to on or process the land even for a moment which was ostensibly given to him in exchange by "G", the conclusion was irresistible that exchange and the sale in favour of G's son-in-law etc. Were parts of same transaction---Mode thus employed, in order to defeat the right of pre' emption possessed by the party, was a disguise which was restored to hide the reality by a counterfeit appearance."
Since the petitioners in the learned lower appellate court have not been able to explain as to what were the reasons for getting this transaction immediately on the same day especially when the exchange was made and after the happening of exchange minutes thereafter, immediately sale took place. These facts in actual conclude the matter that it was a sale disguise in the cover of an exchange.
18. Replying on the arguments of learned counsel for petitioners that since it was an exchange transfer, as such suit for pre-emption did not lie. This reply of the learned counsel is not supported from a judgment laid down in 1999 SCMR 1346, relevant part is reproduced as under:-- "----Question as to whether transaction was sale or exchange---Petitioners had contended that in absence of any provision in Punjab Pre-emption Act, 1991 in contradistinction to sections 4 and 15 of Punjab Pre-emption Act, 1913 to hold a transaction, which ostensibly was of exchange, was in fact one of sale, no power was conferred on Civil Court to declare said transaction as sale---Validity--- -Such contention was neither raised by petitioners in their written statement or in memorandum of appeal before Appellate Court below or in memorandum of revision before High Court---Merely because no provision is existed in Punjab Preemption Act, 1991 empowering Civil Court to declare a transaction as a sale which ostensibly was one of exchange, Civil Court was not debarred to determine true nature of a transaction----Plea not raised earlier in Civil Court, Appellate Court below and in High Court, could not be permitted to be raised at belated stage before Supreme Court---."
19. In view of law laid down and the evidence placed on record present respondents have been able to prove their case that the exchange of land through Mutation No 1736 was only intended to be ultimately converted into sale of Mutation No.1739 especially in the circumstances, when through their defence they have not been able to place on record any evidence to give reason and justify as to why both mutations took place on the same day, most probably in the presence of the parties concerned. The judgment referred to by the learned counsel for respondents is fully applicable to the case in hand.
20. The net result of the above said discussion is that the grounds argued by learned counsel for petitioners are not sustainable in view of the law laid down by the Hon'ble Apex Court, hence the Civil Revision fails and is dismissed.