Through this petition, Muhammad Ashraf impugned the judgment and decree dated 24.5.2011 passed by learned Additional District Judge, Paharpur whereby the appeal filed against the judgment and decree dated 15.11.2010 of learned Civil Judge, Paharpur was dismissed.
2. Briefly slated facts. of the case are that Respondent No. 1-plaintiff filed a suit against petitioner and Respondents No. 2 to 4-defendants for possession through pre-emption in respect of land described in the plaint. The respondent-plaintiff averred in the plaint that the suit property was the ownership of Respondents No. 2 to 4-defendants which was alienated through sale transaction for a sum of Rs. 16,000/- on 27.7.2001 but to ward of the right of pre-emption of the respondent- plaintiff, the petitioner-defendant camouflaged the sale transaction as that of exchange vide Mutations No. 946 and 947 attested on 27.7.2001 in favour of respondents 1, 2 and 4 respectively. He further averred that the mutations are fake and fictitious and given the colour of exchange, in substance, it is a sale transaction and amenable to the right of pre-emption, thus, the instant suit has been filed. He further asserted that he acquired .the knowledge of sale transaction on 03.8.2001 at `digarqaza vela' through one Haji Amanullah son of Haji Muhammad Yar, his son and there and then declared his intention to pre-empt the suit land, where after notice Talb-e-Ishhad was scribed on 08.8.2001 and mailed through registered A/D attested by two witnesses. He further . stated that he is co-sharer, contiguous owner and participator in immunities and appendages. He also challenged the validity of the above stated mutations.
3. The suit was contested by the petitioner-defendant by filing his written statement, wherein he raised the plea that the suit property has been transferred through exchange for better management and he is also co-sharer in the same. The learned trial Court in the light of the pleadings of the parties, framed various contentious issues. After recording evidence of the parties as they wished to adduce and hearing the arguments of learned counsel for the parties, the learned trial Court decreed the suit of respondent-plaintiff. Feeling aggrieved, appeal was filed by the petitioner-defendant which was dismissed by learned Additional District Judge, Paharpur.
Hence, the instant revision petition by the petitioner-defendant.
4. The learned counsel for the petitioner-defendant contended that the respondent-plaintiff has failed to perform Talb-e-Muwathibat as the evidence to support his claim for performance of Talb is deficient and also contradictory, the witnesses are not consistent, thus, he failed to prove the same. He further contended that the suit property is acquired for better management through exchange transaction from Respondents No. 2 to 4-defendants and to this effect, Mutations No. 946 and 947 were attested on 27.7.2001. The respondent-plaintiff has failed to prove that money changed hands to declare the exchange transaction as one of sale. He further argued that burden lies on the shoulder of respondent-plaintiff to prove by producing convincing and cogent evidence that it was sale transaction and not exchange winch he miserably failed, thus, the suit of the respondent-plaintiff is liable to be dismissed.
5. As against that, the learned counsel for the respondent-plaintiff contended that the respondent- plaintiff has successfully proved the performance of Talbs. On behalf of the petitioner-defendant, a lengthy and searching cross-examination was conducted to which the respondent-plaintiff who is an old man of advance age could not be shattered because his claim is bona fide. He maintained that it is the case of the petitioner-defendant that the exchange transaction was made between the petitioner-defendant and Respondents No. 2 to 4-defendants for the better management of the property, however, he could not prove even the transaction of exchange for the purpose as laid down in Section 2(d) of the N-WFP Pre-emption Act, 1987. He further contended that the suit of the respondent-plaintiff is not suffering from any legal infirmity and his claim is bona fide and both the learned Courts below rightly decreed the suit in his favour.
6. I have considered the arguments of learned counsel for the parties and carefully perused the record.
7. A perusal of the record suggests that the petitioner-defendant in his written statement, claimed that the suit property alienated in his favour by Respondents No. 2 to 4-defendants against the property alienated in their favour by the petitioner-defendant and to this effect, Mutations No. 946 and 947 have been attested on the same date. The provision contained in Section 2(d) of the N- WFP Pre-emption Act, 1987 define sale as under-- "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 hibabil-iwaz or hiba-bi-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 aliwaz ;
(ii) A sale in execution of a decree for money or of any other of a civil, criminal, revenue or any other Court or a Revenue Officer or 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, an immovable property by way of dower or composition in a murder or hurt case."
It is spelled out from the above provisions that the transaction of exchange did not fall within the ambit of the sale but when the property was acquired for better management and if the petitioner-defendant took the shelter of exchange transaction to ward of the right of pre-emption of the respondent-plaintiff, it was his duty to prove by means of cogent, convincing and confidence inspiring evidence, that the exchange transaction did not cover by the definition of sale mentioned above, rather required for the better management of the agricultural property. It is well known principle of law that if the relief has been claimed on certain facts, the party is bound to prove the same in accordance with the requirements of law. It is worth mentioning that the petitioner- defendant despite the fact that he has opted to defend his suit on the above stated grounds, but no evidence worth the name led, in support of his stance that the suit property acquired through exchange transaction for better management, inasmuch as he has not testified the very purpose of exchange for better management of agricultural land, thus, he has abandoned the ground agitated in the pleadings as defence by the culpable silence on his part. It is only the sale defined under Section 2(d) of the Act ibid which is pre-emptible and the only transaction exempted under sub-section (iv) of Section 2(d) is the exchange of agricultural land acquired for better management, as exchange for the above said purpose is not included in the definition of sale, however, if it is not acquired for the better management, it would definitely include in the definition of sale and it can be conveniently said that sale being permanent transfer of ownership of an immovable property in exchange for another immovable property. The word "better management' is not defined in the Act and reason for that is that it can vary from case to case and would be a question of fact for all the times to come. It is well known principle of law that every question of fact requires to be distinctly alleged and thereafter proved. In the instant case, though better management alleged but not for agricultural purposes, rather to be more specific, the nature of better management necessitating the transaction of exchange in dispute has not been disclosed, however, the petitioner-defendant in his statement in Court has failed to specify the detail, or had uttered a single word about the exchange, nature and purpose for which it was acquired because without which, no justification could be put forward that it was in fact acquired for better management. Further, the solitary statement of the petitioner-defendant is neither supported by witness nor by any document whereof produced on record to show the reasons for such exchange to take it out of sale transaction. Nonetheless, in the revenue record too, there is no such mention available as held in case titled Akbar Nawaz Khan Vs. Sher Dil Khan and 2 others (1994 M LD 2325 Peshawar), para-4 dealing with the same matter is reproduced below:-- "The words "better management" is not defined in the Act and lightly so because it can vary from case to case and would remain a question of fact all the time. It is again a known principle of law that every question of fact requires to be distinctly alleged and thereafter proved in the instant case it is not alleged in the written statement as to what was the nature of better management that necessitated the transaction of exchange in dispute. It was for the first time in the Court statement of defendant Akbar Nawaz Khan that he came out with an excuse that the suit property was in depression, that it collected the water from 'the defendant's contiguous property and thus used to be rendered uncultivable and hence the exchange was necessitated so that a better management is achieved. At the outset, this solitary statement is neither supported by witnesses nor is it given in support of any pleadings in the written statement and hence is not acceptable.
The acquisition of the disputed property on the ground that it be better managed, is an utterly funny idea because the acquired property never belonged to the receiving party and the better management thereof had never been his headache or problem."
In absence of purpose as referred to above, it is a simple sale and does not fall within the purview of above referred law.
8. The other ground agitated by learned counsel for the petitioner-defendant is that the statements of witnesses are inconsistent and contradictory respecting the time of performance of Talb-e-Muwathibat as they have not given a specific time and stated in vague terms that it was digarqaza vela, and Shamvela whereas it is required under the law that there should be specific time at which Talb-eMuwathibat was performed. In view of the objection of learned counsel for the petitioner-defendant, the evidence of respondent-plaintiff is examined. The witnesses stated the time of performance of Talb-eMuwathibat as digarvela in their statements which would not amount to have violated the provisions of the relevant law. It was clarified by witnesses that digarqazavela means as about Maghrib time. The identical question was agitated before the Honourable Supreme Court of Pakistan that the time of performance of Talb-e-Muwathibat is not specifically disclosed but stated in vague terms as Shamvela. The same is emphasized in the case titled Inayat Vs. Nadar Khan (2007 SCM R 1702) wherein it has been held that:-- "There is ample evidence on record to show that the pre-emptor immediately on coming to know about the sale, announced for exercise of the right of pre-emption and mere fact that in the plaint instead of giving time of making Talb-e-Muwathibat "Maghrabvela" it was mentioned 7 'p.m., would not be sufficient to negate the claim of pre-emptor of making jumping demand for exercise of right of pre-emption. Maghrabvela in general terms is not confined only to the Maghrab prayer time rather it continues till start of Ishavela and thus, the different of time, pointed out by the learned Judge in the High Court would be of no significance, to non-suit the pre-emptor."
9. In view of the above discussion, I am of the view that both the learned Courts below have correctly appreciated the evidence brought on record and have, arrived at just and lawful conclusions. The judgments are not suffering from any illegality or material irregularity calling for interference by this Court. Resultantly, the revision petition being without substance is hereby dismissed, leaving the parties to bear their own costs.