' This Second Appeal arises out of a *pre-emption suit filed by the present appellants with respect to a piece of land measuring 4 kanals. Briefly stated the facts are that the aforesaid suit was dismissed by the Civil Judge, 3rd Class Mandi Baha-ud-Din, on 13-3-65 on the ground that the pre- emptor failed to prove that the transaction was not an exchange but a sale in disguise. Against the dismissal of that suit an appeal was filed by the plaintiff/respondent in the District Court which was made over for disposal to the learned Additional District Judge, Gujrat who reversed the finding of the trial Court on Issue No, 2 and decreed the plaintiff-respondent's suit for pre-emption holding the transaction to be a sale in disguise on 2-10-1965. The defendant/alleged vendee, being aggrieved therefrom, has assailed the appellate decree in this second appeal.
2. The main controversial matter which calls for decision in this appeal is whether the impugned transaction was a sale in disguise subject to the right of pre-emption of the present respondent.
This dispute is covered by Issue No, 2 which may be reproduced as under:- "Whether the sale of the suit land has taken place in favour of defendant and when."
' The learned counsel for the appellants argued that the transaction was in fact a sale was incorrect in relation to the evidence produced on the record.
3. In order to arrive at a correct conclusion regarding this controversial issue it will be advantageous to make the reference of sections 54 and 118 of the Transfer of Property Act which run as under:- "Section 54.-Sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
' Section 118.-When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money value, the transaction is called an 'exchange'.
' A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale."
It is manifest from the above definitions that an exchange as defined in section 118 supra is similar to a sale in so far as it is a mutual transfer of ownership of one thing for the ownership of another, but it differs from a sale in that neither of the things transferred is the price of the other. Thus the distinction between an alienation by way of sale and a transfer by way of exchange lies in the nature of the consideration for such transfer. If the consideration is the price of the property transferred it is a sale, if it is property (not being price) then it is an exchange. Under section 4 of the Punjab Pre-emption A0 the right of pre-emption arises in respect of such land which may be a subject-matter of sale or of foreclosure of right to redeem such property and nothing in this section prevents a Court from holding that a transfer purporting to be then a sale is in fact a sale.
Thus whenever in a suit for pre-emption it is alleged that a transfer which purports in the face of it to be an exchange is in fact a sale, it is the duty of a Court to determine what the real intention of the parties was a opposed to their apparent intention. Let the facts of this case be scrutinize in the light of the above consideration.
4. The learned lower Appellate Court while holding the impugned transaction to be a sale was influenced by the following circumstances:- "(1) That the land in dispute measures 4 kanals and is entered as 'Nebri' in the revenue record whereas the other land which was allegedly transferred to the alleged vendor measures, 3 kanals, 17 marlas out of which 3 kanals, 9 marlas is 'Baran? And rest of it is '13anjar Qadeem'.
(2) That no material has been placed on the file indicative of the fact that the alleged vendor had obtained the possession of land allegedly given to him in exchange.
(3) That originally the parties got entered a mutation of oral sale (Exh. 13) bearing No, 1339 on 20-9- 1963, for a consideration of Rs, 1,500 which was later on rejected per statement of vendor by the Revenue Officer on 29-11-1963.
' Now question arises whether the circumstances referred to above can reasonably lead to the conclusion that the transaction in question was in reality a sale and an appearance of exchange was only given to it in order to defeat a possible suit of pre-emption.
5. As regards the first circumstance, I am afraid that no inference in favour of sale can be drawn from it. This circumstance assuming to be correct merely indicates that a better land was exchanged with an inferior land, no more and no less. This circumstance itself cannot be considered helpful to arrive at the conclusion that it was not an exchange but an outright sale. I am afraid that where from the learned lower Appellate Court drew that inference in favour of sale. Even otherwise section 118 of Transfer of Property Act, does not expressly envisage the keeping of a District equation between the values of the properties exchanged as a sine qua non for a valid transfer by way of exchange. It simply lays down the mutual transfer of ownership of things in lieu of each other.
6. As regards the second circumstance there is overwhelming evidence on the record to prove that the alleged vendor had obtained the possession of the land, which was received by him in exchange of the suit land. For instance D. W. 1 Fateh Mohammad alleged vendor while entering into the witness-box candidly stated that either of the parties had mutually obtained the possession of respective land given in exchange to each other. He further disclosed that he did not receive any money as a sale consideration. He further explained that the land which he had obtained in lieu of the suit land was quite contiguous to his remaining holding and that fact pursuaded him to enter into impugned transaction of exchange. It is strange enough that he was not cross-examined on the facts stated above. Similarly D. W. 2 fully supported the statement of D. W. 1 on the factum of exchange and mutual delivery possession. Mohammad Hussain defendant himself appeared as his own witness in support of his defence and fully corroborated the statements of other D. Ws. On the factum of delivery of possession on the basis of exchange. Sardara respondent while making his statement as his own witness did not controvert the fact of delivery of possession under the impugned exchange. He did not utter a word in rebuttal. Even Ghulam Nabi Patwari, P. W. 1 did not say a word about it and rather supported the factum of exchange deposing as under:- {{URDU TEXT}}
7. As regards the third circumstance, undisputedly a mutation of sale pertaining to the suit land was entered by the Patwari Halqa but the bargain recorded therein was never admitted by the alleged vendor before the Revenue Officer at the time of attestation of mutation and consequently on the basis of his denial the concerned Revenue Officer rightly declined to sanction the same. A subsequent transfer of the suit land by means of an exchange cannot be held to be an impossibility. The parties may change their intentions and may very well enter into a bona fide transaction of exchange instead of sale as a device to defeat the right of pre-emption. Under the law it is open to the parties to effectuate their common intention in a manner which would preclude pre-emptors from interfering with their wishes. Thus there is nothing illegal in effecting an exchange for the purpose of evading the right of pre-emption. However, it is open to a pre-emptor to show that a transaction is really one of sale and is fraudulently made to appear as one of exchange or mortgage or gift.
' It is manifest from the record that the alleged vendor did not receive any sale consideration for the suit land. It is further established that the land which he acquired in exchange of the suit land was never sold subsequently but has been retained by him uptill now. These circumstances clearly establish that he had a strong desire to acquire land for himself which he purported to have taken in exchange of the suit land. The learned counsel for the respondent could not point out any proof on the file establishing that the transaction was in reality a sale in the cloak of an exchange in order to effect the transfer of suit land without exposing to the risk of an attack by a pre-emptor.
The finding of the learned lower Appellate Court in this regard is based on no evidence. The respondent therefore totally failed to substantiate the allegation that impugned transfer masqueraded under the cloak of an exchange, although it was genuinely a sale. On the basis of the foregoing reasons, it can safely be held that the in question on the face of it was clearly an exchange.
8. A preliminary objection was raised by the learned counsel for the respondent that this finding was a finding of fact and could not be disturbed in second appeal and in support of his contention he cited the following authorities : {{FOOT NOTE}}
(1) PLD 1968 Lab. 428 (2) PLD 1954 Lah. 447 {{FOOT NOTE}} ' The learned counsel for the respondent has pressed into service the provisions contained in section 100 of the Code of Civil Procedure and submitted that the jurisdiction of this- Court is inhibited and restricted by the scope of that section and this Court cannot scrutinize the judgment of the lower Appellate Court except to determine whether the decision is contrary to law or some usages having the force of law etc. I have deliberately chosen to deal with this preliminary objection raised by the learned 'counsel towards the end of this judgment because by now a clear picture of the case has emerged and it can safely be held that the finding of the learned lower Appellate Court is based on no evidence. In other words there is nothing on the file to warrant the conclusion drawn by the lower Appellate Court with the result that the conclusion itself is wholly arbitrary, without any basis, and illegal based upon the exclusion of material evidence of the appellant from consideration. In Raja Mohammad Afzal Khan v. Ch. Manzoor Elahi and 6 others (1) the Division Bench of this Court while affirming the law laid down in Mst. Fatima v. Khuda Bakhsh and others (2) held that if there be no proper evidence in support of a finding by the first Court of appeal, or the evidence is misread or misrepresented, the finding, though one of fact, is vitiated and a Court of second appeal is entitled to review it. In Mst. Bibi Jan v. Habib Khan and another (3) the Supreme Court of Pakistan laid down as under :- "No doubt it has been consistently held in a chain of authorities starting from Durga Chowdhrani v.
Jewahir Singh Chowdhri (1 L R 18 Cal. 23 (P C) up to Bharpura v. Diwan Chand (A 1 R 1940 Lah. 329), unexceptionally followed by the superior Courts of Indo Pakistan that the High Court has no jurisdiction to entertain a second {{FOOT NOTE}}
(1) PLD 1975 Lab. 1276 (2) PLD 1959 Lah. 826
(3) PLD 1975 SC 295 {{FOOT NOTE}} ' appeal on the ground of an erroneous finding of fact howsoever gross or inexcusable the error may be, yet there is ample authority for the proposition that no sanctity attaches even to a concurrent finding of fact based on misreading or misrepresentation of evidence as this would clearly bring the case within the scope of clause (c) of section 100, Code of Civil Procedure."
' In the light of the abovenoted case-law the preliminary objection raised by the learned counsel for the respondent is hereby overruled.
9. For what has been stated above I hold that the impugned transaction was not a transaction of sale wearing a mask of an exchange but a genuine exchange not subject to the right of pre- emption of the respondent. On this finding I set aside the judgment and decree passed by the lower Appellate Court, allow the appeal and maintain the judgment and decree of the trial Court dismissing the respondent/plaintiff's suit of pre-emption with costs throughout.