' RAJA SAEED AKRAM KHAN, J.---This appeal, with the leave of the Court arises out of the judgment and decree passed by the High Court on 30-4-2009, whereby while accepting the appeal filed by the respondents, herein, the judgments and decrees recorded by the Courts below have been set aside and the suit is dismissed,
2. The gist of the facts culminating into this appeal is that the appellant, herein, filed a suit for pre- emption against respondent No,1, Mst. Hassan Jan, in respect of the suit land before the Civil Judge, Sehnsa. It was averred by the plaintiff-appellant that the gift-deed by Muhammad Younas Khan, respondent No 2 in favour of Mst. Hassan Jan, respondent No, 1, executed on 30-11-2005 was, in fact, a transaction of sale, which was manoeuvred just to defeat the right of preemption of the plaintiff- appellant. The suit was decreed by the trial Court on 12-4-2007. Being dissatisfied from the judgment and decree of the trial court, respondent No,1 filed an appeal before the Additional District Judge, Sehnsa, which was dismissed on 4-9-2007. The judgment and decree passed by the Additional District Judge were assailed before the High Court through second appeal. The High Court accepted the appeal vide impugned judgment dated 30-4-2009 which is the subject- matter of this appeal,
3. Mr. Abdul Majeed Mania, the learned counsel for the appellant, submitted that both the Courts below have concurrently held that the transaction was in fact a sale which was camouflaged and disguised just to defeat the right of the pre-emption of the plaintiff-appellant, therefore, the High Court was not justified to disturb the findings concurrently recorded by the Courts below as there was no misreading or non-reading of evidence. He argued that the learned Judge in the High Court has not appreciated the evidence on the record in its true perspective and erroneously dismissed the suit filed by the plaintiff-appellant. The High Court erred in law while not taking into consideration the fact that the property was initially acquired by respondent No,2 by virtue of a decree for possession on the basis of right of pre-emption passed by the Court of Sub-Judge, Sehnsa, on 4-3-1997 against the decretal amount of Rs,6,00,000 as price of the land. He contended that with no stretch of imagination one can assume that the property which was acquired on payment of 6 lac rupees was donated to respondent No,1 without any consideration. He argued that there is un-rebutted evidence on the record that respondent No, 1 is a rich lady of advanced age. Her sons are settled in United Kingdom and she is enjoying high status in the society, therefore, it is unbelievable that the property was transferred to her in donation. He forcefully relied upon the statement of Muhammad Younas Khan, respondent No,2, which is available at page 30 of the paper book, wherein he has admitted that, he is a green grocer. It is unbelievable that such like 'ordinary person, whose only source of income is based on a vegetable shop, can donate the land without any consideration. This fact has totally been ignored by the High Court while passing the impugned judgment which is not sustainable in the eye of law. He further argued that the High Court also failed to examine that the transaction in question was made and executed through the father of respondent No,2. Respondent No,2 expressly deposed that the transaction was made by his father and he executed the deed under the direction and influence of his father without knowing as to what price was passed on by the attorney of respondent No,1 to the father of respondent No,2. The High Court failed to evaluate the evidence of the parties in a judicious manner. Both the Courts below have examined the evidence led by both the parties minutely and rightly came to the conclusion that transaction was in fact a sale and not a gift. The learned counsel further argued that the High Court also erroneously decided the nature of the transaction as a gift without taking into consideration the fact that the necessary conditions pre-requisite to the gift were not fulfilled, therefore, the document cannot be treated as a valid gift. He argued that section 4 of the Right of Prior Purchase Act, is a safeguard against the fraudulent transaction of the transfer of the property. He lastly argued that the appellant is ready to make the payment according to the value determined by this Court. He has relied upon the cases titled Muhammad Sadiq and 2 others v. Barkat All and 4 others (1990 CLC 533), Muhammad Hussain and others v.
Miran Bakhsh and others (1989 SCMR 1064) Ghulam Muhammad and another v. Muhammad Ashraf and 2 others (PLD 1981 SC (AJ&K) 118.) and Muhammad Bashir v. Mirza and others (1987 SCMR 1277). The learned counsel for the appellant has also relied upon an unreported judgment of this Court titled Talib Hussain v. Muhammad Boota and others in (Civil Appeal No,40 of 2006 decided on 28-5-2012) by filing an application dated 19-6-2012.
' In the case titled Muhammad Sadiq and 2 others v. Barkat All and 4 others (1990 CLC 533), referred to by the learned counsel for the appellant, it has been held that where the Court has to give the decision about the nature of transaction, whether it was a gift or a sale, its decision depends upon scrutiny of evidence led by the parties. We respectfully agree with the proposition laid down in the supra case but it is not helpful to the case of the appellant as in the evidence, the plaintiff- appellant failed to prove his case.
' In the case titled Muhammad Hussain and others v. Miran Bakhsh and others (1989 SCMR 1064), relied upon by the learned counsel for the appellant, it has been held that the donor in no way was connected with the donee as he had a large family of his own to support and was owner of very small holding. In the case in hand, nothing has been brought on the record that the donor is a poor person and he has no other holding or estate. The donor himself appeared in the Court and categorically stated that he runs the business of shoes, clothes, green grocery etc. ' In the case titled Muhammad Bashir v. Mirza and others (1987 SCMR 1277), the donor as well as donee belonged to different villages and tehsils, therefore, it was held that the transactions were given the colour of gift on the ground that the donee was adopted by the donor. In the instant case, the donor has gifted the property to his real aunt.
' In a case titled Ghulam Muhammad and another v. Muhammad Ashraf and 2 others (PLD 1981 SC (AJ&K) 118), a mortgage deed was executed in which it was mentioned that if the land is not redeemed, the ownership will vest in the mortgagee. For this reason, the Court came to the conclusion that at the time of execution of mortgage the intention of the parties was to transfer permanently the interests in the land.
4. On the other hand, Ch. Muhammad Taj, counsel for the respondents while controverting the arguments advanced by the learned counsel for the appellant has submitted that the judgment passed by the High Court is perfect and legal which cannot be interfered with by this Court. He argued that the transaction does not fall within the purview of sale-deed which has been defined under section 54 of the Transfer of Property Act as no evidence for exchange of the money is available on the record and any transaction without any consideration cannot be treated as sale- deed. He argued that admittedly no exchange of money has been made in this regard, therefore, it was a valid gift-deed which cannot be treated as sale-deed only on the ground that the donor was a green grocer. He further argued that Mst. Hassan Begum, respondent No,1 is real aunt of Muhammad Yunus Khan, respondent No,2. No evidence whatsoever was brought on the record that the transaction was a sale-deed and not a gift-deed; therefore, in absence of any evidence, the findings of both the Courts below were illegal and rightly set aside by the High Court. The evidence produced by the plaintiff-appellant through Muhammad Sadiq, Tabraiz Khan and Gulfraz Khan, the attorney, is only hearsay evidence; therefore the High Court has rightly disbelieved the said evidence. The onus of proof was rightly placed on the shoulders of the plaintiff-appellant who failed to discharge the same. He argued that the property gifted away in favour of respondent No,1 is not open to preempt. He argued that in the plaint, the plaintiff-appellant has not claimed that the gift be declared as sale, therefore no relief can be granted beyond the pleadings. He lastly argued that nothing is mentioned anywhere in the plaint whether the transaction was a sale or a gift as no description of the land has been made/mentioned in the plaint which was the requirement of the plaint and the same was liable to be dismissed on this sole ground.
5. We have heard the respective contentions of the learned counsel for the parties and perused the record along with the impugned judgment and precedents referred to and relied by both the learned counsel for the parties. The main controversy involved in this case is whether document through which the transfer of disputed laid was made is in fact, a sale or a gift. To resolve the controversy, we have to examine the provisions of section 4 of the Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 BK which speaks as under:- "Right of Prior Purchase; Application of.---The right of prior purchase shall mean the right of a person to acquire agricultural land or village immovable property in preference to other persons and it arises in respect of such land only in case of sales; or of foreclosures of the right to redeem such property.
' Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale."
' The bare reading of the above reproduced section of the Right of Prior Purchase Act reveals that the court is empowered to declare an alienation/transaction purporting to be other than a sale as in effect a sale. To draw an inference whether in the instant case, the transaction is in fact a 'sale' or not, we have to examine the necessary ingredients prerequisite to 'sale' or 'gift'. For this purpose, we have to keep in our mind the meaning of the words 'sale and 'gift'. The word 'sale' has been defined in section 54 of the Transfer of Property Act which reads as under:-- "54. 'Sale defined.' Sale' is a transfer of ownership in exchange for a price paid or promised or part paid, part-promised."
The word 'gift' has been defined in D.F. Mulla's Principles of Muhammadan Law in Chapter XI, under section 138 in the following terms:-- "138. Hiba or gift.---A hiba or gift is a transfer of property, made immediately, and without any exchange,' by one person to another, and accepted by or on behalf of the latter. Hiba means transfer of right of property in substance by one person to another without consideration which is condition to be fulfilled in order to make a gift valid."
For better understanding, we have also to consult the dictionary meanings of the above terms. In this regard, we have consulted different dictionaries. In the Concise Oxford Dictionary eighth edition, edited by R.E. Allen, the meanings of words 'sale' and 'gift' have been given as under: -- "Sale.l. The exchange of a commodity for money etc; an act or instance of selling.
2. The amount of sale (the sales were enormous).
3. The rapid disposal of goods at reduced prices for al period esp at the end of a season etc.
4. a. An event at which goods are sold b. a public auction."
' Gift.
1. a thing given; a present.
2. a natural ability or talent.
3. The power to give (in his gift),
4. The act or an instance of giving."
' The meanings of the words 'sale' and 'gift' in Black's Law Dictionary sixth edition have been given as under:-- "Sale. A contract between two parties, called, respectively, the "seller" (or vendor) and the "buyer"
(or purchaser), by which the former, in consideration of the payment or promise of payment of a certain price in money, transfers to the latter them. C title and the possession of property. Transfer of property as providing of services for consideration. A transfer of property for a fixed price in money or its equivalent."
"Gift. A voluntary transfer of property to another made gratuitously and without consideration."
' In Chapter XXVI, under section 183 of the book "A Code of Muslim Personal Law" by Dr. Tanzil-ur- Rahman (First Edition) the word 'gift' has been defined as under:-- "183. Transfer of movable or immovable property with immediate effect and without consideration by one person in favour of another and the acceptance of the same by that another himself or by someone authorised on his behalf is called 'gift', provided that one making the gift must totally renounce, all his title and rights in the property gifted away of his independent free will."
' Both these terms have been further elaborated by the superior judiciary of India, Pakistan as well as AJ&K in various judgments; some of which are referred hereunder. From Indian jurisdiction, in a case titled Electric Supply Corporation Ltd. v. Commissioner of Income Tax (AIR 1951 Cal. 151) the words sale' and 'gift' have been interpreted as under:-- "15. The word 'sale' is not defined in the Income-Tax Act and therefore it must be given its ordinary grammatical meaning. According to the Oxford Dictionary 'sale means 'an act of selling or making over to another for a price. It has also been defined as an exchange of a thing for a price. Making over anything for a price or exchanging it for a price suggests that the act is voluntary. The ordinary conception of 'sale' is that something is handed over for a price as the result of negotiation and agreement. There is an agreement between the parties whereby one person known as the seller hands over a thing or property to the other person known as the buyer for a consideration usually in terms of money which has been agreed between the parties. That is the ordinary. English conception of a 'sale' ."
' In another case reported as Tatoba Ganu v. Tarabai (AIR 1957 Bombay 280) distinctions have been drawn between 'sale' and 'gift' in the following manner:- Mr. Paranjpe argues that alienation by way of gift may be treated upon the same footing. He says, applying the analogy that the deed of gift is voidable at the option of the other coparceners and if the other coparceners affirm it, there is no reason why the deed of gift is not valid. It may, however, be pointed out that in this case it is not suggested that the other coparceners i,e,, Paygonda alias Kakasaheb and Anagonda have, at any time affirmed the deed of gift. Therefore, the position is that the deed of gift was executed by Balgonda as a managing member of the family and there has been in this case no ratification of the deed of gift either by Paygonda or by Anagonda. Mr. Paranjpe does not dispute the fact that Balgonda as a manager would have no power to make a valid gift in respect of this property. From what I have stated above, it follows, I think, that if the deed of gift by a coparcener in a joint family is invalid, then there is no reason why a deed of gift executed by a managing member should be -valid, unless it comes within the exceptions which 1 have mentioned above. If a coparcener cannot make a valid deed of gift, much more so would be the disability in the case of a managing member, because, the power of a managing member is derived from the peculiar position which he holds in the family and which he represents in his relations towards the rest of the world. But Mr. Paranjpe's argument is that in the case of a sale, even if the sale is in excess of the powers of the manager and even, if the sale is without legal necessity, it is open to the other members of the-family to affirm the sale. If, therefore, the other members of the family can affirm the sale, there is no reason why the other members of the family cannot, equally, affirm the deed of gift. But in our view, there is an essential difference between the case of a deed of sale and a deed of gift. In the case of a deed of sale, the sale is good only for consideration. In the case of a gift there is no consideration proceedings from the donee to the donor except, what one may call, natural love and affection as. Constituting the consideration for the transaction, and as I have already pointed out, in the case of family property there is community of interest and unity of possession. Every member of the family is the owner of the whole property until the property is made the subject of partition between the members of the family and that is the reason why the law has made an alienation of the family property a valid alienation where the alienation is supported by consideration. Apart from authority, therefore, and relying upon the texts mentioned above, we have come to the conclusion that the deed of gift executed by Balgonda in favour of the firs plaintiff is invalid, and does not confer any title upon the firs plaintiff."
' From Pakistan jurisdiction, in a case titled Mst. Wajida Begum and others v. Mst. Shamim Akhtar and others (2004 CLC 231), the word `sale' has been interpreted as under:-- "It is necessary that some price in cash must be paid for the thing sold. The word "sale" is defined in M. Malik v. Mst. Razia PLD 1988 Lah., 45 in the following terms:-- ' Sale' means transfer of ownership in exchange for a price paid or promised or part paid and part promised where sale was made orally and reported to Patwari by parties thereto who had admitted payment of the consideration and delivery of possession on the basis whereof mutation was entered. Sale would be effected and completed on that day and not when mutation in respect thereof, was sanctioned."
' In a case Ali Muhammad and others Chief Settlement and Rehabilitation Commissioner and others (1984 SCMR 94) the word "sale was interpreted in para.9 of the judgment in the following terms:-- "9. Regarding the argument---non-registration of the sale transaction between Hardial Singh and the Punjab Government, it may be mentioned that the Transfer of Property Act does not apply to the rural areas of the Punjab and the principles of justice, equity and good conscience would not be attracted to technical rules as the entries in the revenue record do not support the case of the appellants. The land declared as evacuee would not be treated as State land. The land in dispute was trusted evacuee from 1947 to 1953 as is established from the revenue record. Therefore, it was not open now to the revenue authority to treat it as non-evacuee without obtaining requisite declaration from the Custodian Authorities which has not been done in the present case. "
' Similarly in para 10 of the referred judgment, it has been observed as under:-- "10 Sale is defined in the Transfer of Property Act as being a transfer of ownership for price in a sale, there is an absolute transfer of all rights in the property sold. No rights are left in the transferor.
Somewhat similar point came up before the learned Judges of the Lahore High Court in a case reported in PLD 1956 Lah. 94 wherein a declaration was sought to the effect that a certain gift of land made by a widow, who had acquired the land by purchase of proprietary rights under the provisions of the Colonization of Government Lands (Punjab) Act V of 1912, was null and void under custom, the question was whether the widow had acquired proprietary rights in land before or after the commencement of Colonization of Government Lands (Punjab) (Amendment) Act, 1944. It was held that if she had acquired such rights before the commencement of that Act, she became absolute owner of the land and the suit was incompetent but if she acquired such rights after the commencement of that Act, her interest in land was governed by section 30-A of the Colonization of Government Lands (Punjab) Act, V of 1912. In the circumstances of this case it was held that the widow became full owner of the tenancy lands in possession on the date when she deposited, and the Government accepted the sale price."
' Similarly in a case titled Saleem Akhtar v. Ronak Ali PLD 2000 Lah. 385 the sale was defined in the following terms:-- "11 It is an oral sale and to prove a sale the respondent should have produced the witnesses in whose presence the bargain of, the sale was struck and the consideration paid to the petitioner.
The sale has been defined in section 54 of the Transfer of Property Act, A882:- 'Sale' is transfer of ownership in exchange for a price paid or promised or part paid and part-promised. The essential elements of a sale are:--
(1) the parties:
(2) the subject matter:
(3) the transfer of conveyance:
(4) the price or consideration.
' The parties of the sale are the seller and the buyer. The seller must be a person competent to transfer and he must be competent to contract and he must have titled to the property or authority to transfer it if it is not his own."
' Similarly in a case titled Mg. Manzoor Mai v. Abdul Aziz (1992 CLC 235) in which the Court has interpreted the word 'gift' in the following manner: - Is admittedly the three essentials of a valid gift under the Muslim Law, are (i) declaration of gift by the donor, (ii) an express or implied acceptance of gift by donee; and (iii) seisin/delivery of possession of donated property by the donor to the donee. These elements are necessary for a gift. The possession is a condition precedent to the validity of gift. The Holy Prophet (peace be upon him) said A gift is not valid unless possessed' (Ref: Inayah, Vol. IV, page 24). The law, however, requires that the possession is to be given to the donee as nature of the property permits. The mode and manner of delivery of possession is dependent upon the nature and character of a property and the question has to be considered by taking into consideration all the facts and circumstances of each case.
' We are also fortified by the judgment titled Muhammad v. Allah Dina (1990 CLC 765); it has been held as under:--
13. Section 54 of the Transfer of Property Act defines the term "sale" and the requisite conditions constituting a valid sale, "Sale" is described as transfer of ownership in exchange of price paid or promised or part paid and part promised. It is made in respect of tangible immovable property of the value of rupees one hundred and upwards, by a registered instrument and in case of immovable property of the value of less than rupees one hundred, by a registered sale-deed or by delivery of possession. Delivery of immovable property takes place where the seller places die buyer or his agent in possession of the property. The Transfer of Property Act occupies the field in Azad Kashmir. Thus, a legal sale takes effect on fulfilment of the aforesaid conditions."
6. After going through the above cited section 4 of the 'Right of Prior Purchase Act and meanings of words 'sale' and 'gift' given in different dictionaries, statues and celebrated judgments of the superior judiciary one thing is clear in our mind that main difference between 'sale and 'gift' is that; in a case of sale, the consideration and exchange of money is an essential element and condition precedent whereas in the case of the 'gift' there is no such condition precedent. The only condition precedent to a valid 'gift' is the transfer of possession, E however, the mode and manner of delivery of, possession is dependent upon the nature and character of a property keeping in view the overall circumstances of each case.
7. Now coming towards the case of the appellant that what sort of evidence he has produced before the trial Court to prove his assertions that the document through which the property in dispute was transferred was in fact .a 'sale-deed' and not a 'gift-deed' and it was a device manoeuvred only to defeat the right of pre-emption available to the plaintiff-appellant. After going through the record, we observed that in support of the, case, the plaintiff-appellant produced three witnesses, namely, Muhammad Sadiq, Tabraiz Khan and Gulfraz Khan; the attorney. We have scrutinized the evidence of all the three witnesses. We would like to reproduce the relevant portion of the statements of the witnesses examined by the plaintiff-appellant during the trial of the suit.
Muhammad Sadiq, witness stated as under:- {{URDU TEXT}} ' Tabraiz Khan, witness stated as under:-- Gulfraz Khan, witness stated as under-- {{URDU TEXT}} ' After going through the statements of the witnesses, we have gathered the view that none of the witnesses has stated categorically that he was present at the time of execution of gift-deed and money exchanged the hands in his presence. All the three witnesses are consistent on the point that they have heard about the sale but they failed to state in a categorical manner, as how much amount has actually been exchanged.
8. The learned counsel for the appellant has heavily relied upon the statement of Muhammad Younas (donor) who stated while appearing in the Court that he is a green grocer and there is no other source of his income except it. He stated as under--{{URDU TEXT}} ' We have also considered the statement of Muhammad Younas, respondent No,2, who stated that he is running the business of fruits, lunda, shoes and clothes and there is no other source of income for him. The argument of the learned counsel for the plaintiff-appellant that respondent No,2 is running the business of green grocery, therefore, being a poor person he could not gift his property; is devoid of any force. Here we may observe that Muhammad Younus, donor, in his statement has stated that apart from green grocery, he also runs the business of shoes, clothes and lunda' items.
The argument of the learned counsel to this extent is not tenable that such a person cannot transfer the land without any consideration. Furthermore, the contention of the learned counsel for the plaintiff-appellant that Mst. Hassan Begum is a lady of sound financial position, therefore, she cannot get the property free of cost, is also devoid of any force as all the arguments advanced by the learned counsel are based on presumptions. The main reliance has been placed on the evidence of the other party whereas it is celebrated F principle of law that plaintiff must stand on his own legs and specifically has to advance some cogent evidence to prove his case. The trial Court passed the decree while relying on the statements of Muhammad Sadiq, Tabraiz Khan and Gulfraz Khan. In our estimation the trial Court as well as the first appellant Court failed to evaluate the statements of the aforesaid witnesses in true perspective. A perusal of the above said statements reveals that it is only a hearsay evidence which is not G admissible. So far as the statement of Muhammad Younus is concerned, the plaintiff-appellant cannot get the benefit of any lapses made on the part of the defendant. The case of the plaintiff-appellant is that the document, i,e,, gift-deed was in fact a sale, therefore, the onus of proof H lies upon the shoulders of the plaintiff-appellant to prove that in fact the gift-deed was a sale-deed. The plaintiff-appellant failed to discharge the onus of poof. Even otherwise in the instant case there was no convincing evidence on the basis of which it could be said that the transaction of gift was in fact a sale. There is also no cogent and convincing evidence on behalf of the plaintiff-appellant on the basis of which it could be said that the transaction was a sale and not a gift, therefore, the subordinate Courts have wrongly held that it was a sale. Without adducing the cogent evidence, merely on the assertion of plaintiff-appellant, it could not be said that the transaction was not a gift but a sale.
9. We may observe that in pre-emption cases the plaintiff must prove affirmatively with cogent evidence that the transaction which he wants to pre-empt is a sale and he has a preferential right over the vendee. In absence of any cogent and convincing evidence, the inference cannot be drawn merely on the ground that a person in whose favour the gift-deed was executed was enjoying good financial position and the person who has executed the same was only a green grocer. The gift-deed cannot be declared as sale-deed merely on the assertion that the transaction garbed in the form of gift-deed is in fact a sale-deed. In this regard reliance can be placed on a case titled Rati Ram and others v. Mam Chand and others (AIR 1959 Punjab 117), wherein it has been held as under:-- "5 It is well established that right of pre-emption is a piratical right and it imposes a restriction on the right of the owner to transfer his property to whomsoever he likes. This right operates as a clog on the right of the owner to alienate his property to a person of his own choice: it has therefore, to be strictly construed. The plaintiff in a pre-emption suit, who is an aggressor, must in my opinion, prove affirmatively that the transaction which he wants to pre-empt is a sale and that he has a preferential right over the vendees; in case there exists a doubt about the transaction in question being a sale the plaintiff must fail.
' The policy underlying the law of pre-emption is to keep out strangers and thus to maintain the privacy and compactness of joint owners. In the present changed condition of our society, this trend is likely to obstruct and retard instead of promoting, the economic and social progress of the community. In this view of the matter if the transaction in dispute is capable of two interpretations the. Courts should, in my opinion, be disinclined to hold it to be a sale so as to force the owner of the property to transfer it to a person who is not of his choice."
10. While adverting to the argument of the learned counsel for the plaintiff-appellant that concurrent findings cannot be interfered with in second appeal, we agree with the argument of the learned counsel to this extent that normally High Court shall not interfere with the concurrent findings of the Courts below, however, the same can be interfered with if some misreading or non- reading of evidence comes on the record and for that purpose it is enjoined upon the party who alleges the same to specifically point out the evidence which is misread. In the instant case the defendants-respondents have fully proved the misreading and non-reading of evidence i,e, statements of the witnesses referred to above. We have discussed the entire evidence adduced by the parties minutely and in our estimation the statements of witnesses referred to above were not read and appreciated in true perspective which is clear misreading and non-reading of evidence on the part of the trial Court as well as first appellate Court, therefore, the principle that the concurrent findings cannot be interfered with is not applicable in this case. Reliance can be placed on a case titled Muhammad Riaz v. Muhammad Riyasat and 8 others (2008 SCR 308) in which it has been observed as under:- ' I do not entertain any second view on the point that the concurrent findings of facts are open to attack and can be recalled by this Court if the same are not supported by any evidence or otherwise are unreasonable or perverse - ' In another case titled Pir Muhammad Younas Shah and 10 others v. Abdullah and 2 others (1992 CLC 15) it has been observed as under:-- " .....Thus, we are of the opinion that the contention of the learned counsel for the appellants that the concurrent findings by the Courts' below with regard to the identify of land was not open to challenge in the second appeal, is not sustainable for the simple reason that the trial Court and the first appellate Court have made a wrong approach to the case to give finding on a point which was not raised in the pleadings by the appellants. It is settled principle of law that if the trial Court and the first appellate Court make such wrong approach to the case, concurrent findings is open to challenge."
' In another case titled Mst. Manzoor Mai v. Abdul Aziz (1992 CLC 235), it was held as under:- "19. I have carefully taken into consideration the evidence of both parties noted above and have come to considered opinion that the concurrent findings of the two Courts below are in contravention of provision of law and in disregard of the well-settled principles relating to evidential value of the admission contained in duly sanctioned mutation In the above referred judgment it has been further observed in para 21 as under:- 21 When judged from this angle I have no hesitation in coming to conclusion that the two bouts below have erred in law by overlooking the evidential value of the admission of respondent before Patwari Ishtimal and before the Revenue Officer. These admissions were corroborated by the bulk of evidence and led to conclusion that donor did make a gift of property in dispute in favour of donee and she had received the possession of the property,'
' Again in paragraph 24 of the judgment, it was observed as under:- "24. The contention of the respondent that the concurrent conclusion of facts on the question of possession recorded by two Courts below cannot be interfered with is devoid of legal support. If the perusal of the impugned judgment shows that the findings of the two Courts below on the question of fact were contrary to circumstances apparent on the, record and were in violation of the provisions of law, such findings are liable to interference under section 100 of the C.P.C. It is also held in supra cases that if the trial Court and the first' appellate Court have made a wrong approach to the case, the concurrent findings would be open to challenge and will be set aside. To prove a transaction as sale, the pre-requisite condition, as observed above is a consideration/exchange of money and without fulfilling the above said condition, a document cannot be declared as a deed of sale.
11. There is another important aspect of the case. The plaintiff-appellant has not specifically claimed/prayed in the plaint to declare the 'gift' as 'sale', therefore, no such relief can be granted which has not been specifically claimed in the pleadings. For our own satisfaction, we have examined the contents of the plaint minutely and given our serious thought. It would be advantageous to reproduce the prayer clause as under:-- {{URDU TEXT}} From the bare reading of the above said prayer clause, we failed to find out that any such prayer was made that the 'gift' be declared as a `sale', therefore, we agree with the contention raised by the learned counsel for the respondents. It is a celebrated principle of law that no relief can be granted beyond the pleadings.. We are fortified in our view by a case titled Misri and 2 others v.
Muhammad Sharif and 49 others (1996 MLD 362), in which it has been observed as under:-- " The learned Advocate has, however, rightly pointed Out that the finding given by the trial court in relation to the question of partition of the suit land between the co-owners was unwarranted having neither raised in the pleadings nor stated in evidence by either party, and I would agree with him that the trial Judge should not have embarked upon himself to have entered into the discussion of any such issue which did not form part of the pleadings. Anyhow, this objection would be of no avail in view of my discussion of the case in paras Nos. 3 and 5 of this judgment."
' In another case titled Abdul Malik and others v. Muhammad Latif and others (1993 SCR 335) it has been held as under:- "It is well settled principle of law that if a party proves a different case at the trial from one set up in the pleadings such a party is not entitled to any relief and evidence of the facts not pleaded cannot be looked into."
12. Here we would also like to observe that while alienating/ transferring the property by way of gift there is no restriction upon the donor who has un-fettered power to gift away his property without any consideration. .
13. In view of the above discussion, we feel no hesitation to hold that the plaintiff-appellant has failed to prove that the document, i,e,, the gift-deed was in fact a sale-deed. No evidence has been brought on the record regarding the exchange of money/consideration which is an essential element to prove a transaction as sale.
' In the light of what has been stated above we do not find any illegality or infirmity in the judgment and decree of the High Court which have been passed after due application of judicial mind and appraising the evidence according to the settled norms of the administration of justice. Resultantly, this appeal having no force is dismissed with order as to costs.