' SARDAR MUHAMMAD SADIQ KHAN, J.---The captioned appeal with the leave of the Court has been filed against the consolidated judgment of the High Court dated 20-5-2005 whereby the judgments and decrees recorded by the Courts below have been set aside whereby while accepting Civil Appeal No, 58 of 2004 the gift-deed executed in favour of Muhammad Boota and his brother has been kept intact and Appeal No, 59 of 2004 filed by Raja Muhammad Najib, has been dismissed.
2. Brief facts giving rise to the instant appeal are that on 16-2-1986, a sale-deed was executed between Ghulam Rasool and Fazal Dad. Ghulam Rasool R/o Bajoran sold his property measuring 25 kanals and 10 marlas, through a sale-deed executed in favour of Fazal Dad. Three pre-emption suits on different grounds were filed against the sale-deed dated 16-2-1986; one by Muhammad Bashir son of Ghulam Rasool, the other by Talib Hussain son of Raj Muhammad and third one was filed by Muhammad Najeeb son of Dewan Ali Khan. The trial Court vide order dated 7-2-1990, decreed the pre-emption suit filed by Muhammad Bashir and in alternative, a pre-emption decree was also passed in favour of Muhammad Najeeb with the condition that if Muhammad Bashir failed to deposit the decretal amount before 7-3-1990, Muhammad Najeeb shall pay the decretal amount and get decreed the preemption suit in his favour. Muhammad Bashir deposited the decretal amount of Rs,2,60,000 within due date and preemption decree was issued in his favour.
Mutation was attested in favour of Muhammad .Bashir regarding the suit-land. Later on, Muhammad Bashir transferred the said land to Muhammad Boota and Muhammad Sadiq, sons of Fazal Dad, through a gift-deed. Talib Hussain and Raja Muhammad Najeeb filed separate suits in the trial Court for pre-emption claiming therein that Muhammad Bashir has actually executed sale-deed in the garb of gift-deed. The trial Court after framing issues, vide judgment and decree dated 19-5-2003,- dismissed the suit filed by Muhammad Najeeb whereas the suit filed by Talib Hussain was, decreed in his favour and he was directed to deposit Rs,10,00,000 (Ten Lac) as decretal amount. The respondents herein challenged the judgment and decree passed by the trial Court by way of appeal in the Court of District Judge. The Additional District Judge Dudyal, Camp Mirpur, vide order dated 6-12-2003, dismissed the appeal filed by Muhammad Najeeb whereas by partly accepting the appeal filed by Talib Hussain, the same was remanded to the trial Court for afresh decision on issue No,5. Respondents Nos .1 and 2 herein and Raja Muhammad Najeeb challenged the judgment of the Additional District Judge by way of civil appeals in the High Court.
The learned High Court consolidated both the appeals and after hearing arguments, entrusted the case to Abdul Rashid Sulehria, District Judge Kotli, for disposal under law. On 22-4-2004, the learned District Judge. Kotli, dismissed the appeal filed by Muhammad Najeeb whereas the judgment and decree of the trial Court recorded on 19-5-2003 was upheld with the modification that the decree of pre-emption in favour of Talib Hussain is passed for a consideration of Rs,2,60,000 as decretal amount. Respondents Nos.1 and 2 filed an appeal in the High Court challenging the judgment and decree of the District Judge dated 22-4-2004 whereas Raja Muhammad Najeeb, pro forma respondent herein also assailed the judgment of District Judge in the High Court. The learned High Court disallowed the appeal filed by Raja Muhammad Najeeb, whereas the appeal filed by Boota and another was accepted and the judgments and decrees recorded by the Courts below were set aside. The gift-deed executed in favour of Muhammad Boota and another has been kept intact. The judgment of the High Court was assailed before this Court through a petition for leave to appeal.
3. The petition for leave to appeal was dismissed by this Court vide order dated .31-8-2005. The petitioner filed a review petition against the order dated 31-8-2005 which was accepted by this Court and leave to appeal was converted into regular appeal. In the leave granting order, the grounds taken by the petitioner have been reproduced which are as under:-- "(i) that the learned Judge was not justified to set aside the concurrent findings of facts whereby Courts below had held transaction as a sale in the garb of gift-deed,
(ii) that in civil cases, the parties are not bound to prove any fact beyond reasonable shadow of doubt. It is in fact the preponderance of probability upon which the Courts have to base their findings in a civil case;
(iii) that when evidence is produced by contesting parties on a disputed question of fact, then onus of proof loses its importance. The Courts are to weigh evidence of parties and record finding on such question of fact; and that the judgment of the High Court was bad in law whereby it was held that if alleged gift deed is challenged by a person who has executed it or his legal heirs, then the standard of evidence shall be different than that if it is challenged by any person other than aforementioned persons".
4. Previously, the appeal was heard and the judgment was kept reserved by the Division Bench of this Court. While dictating the judgment, on 2-3-2012, it was observed that substantial question of public importance is involved which is required to be thrashed out by the Full Bench. On 26-3-2012, the Hon'ble Chief Justice reconstituted the bench and the case was fixed for fresh arguments on 24-4-2012.
5. Mr. Abdul Rashid Abbasi Advocate, the learned counsel for the appellant, after stating detailed facts of the case, opposed the judgment of the High Court, on different grounds. He submitted that Muhammad Bashir, the alleged donor, executed a sale-deed in favour of Fazal Dad, the father of alleged donees. The sale was pre-empted by Muhammad Bashir, son of Ghulam Rasool, Talib Hussain and Muhammad Najeeb through separate suits. The trial Court decreed the pre-emption suit filed by the donor, Muhammad ,Bashir son of Ghulam Rasool whereas an alternative decree was passed in favour of Muhammad Najeeb with the condition that if Muhammad Bashir failed to deposit the decretal amount within specified period, he may deposit the same and get the suit decreed in his favour. The suit for preemption filed by Talib Hussain was dismissed. The learned counsel submitted that the mutation on the basis of decree was attested in favour of Muhammad Bashir, on 28-6-1994 and on the very next day, on 29-6-1994, through a fictitious gift-deed, Muhammad Bashir transferred the property in favour of Muhammad Boota and Muhammad Sadiq sons of Fazal Dad, against whom he had already got the preemption decree. The judgment of the trial-Court was upheld up to the apex Court. He further argued that the gift-deed executed by Muhammad Bashir son of Ghulam Rasool, in favour of Muhammad Boota etc., is in fact a sale- deed, in the garb of gift-deed planned to defeat the right of prior purchase available to the appellant. The learned counsel further submitted that after obtaining a pre-emption decree against the sale-deed executed by his father, Muhammad Bashir transferred the same property through gift-deed in favour of the person against whom he got a pre-emption decree. He -further submitted that alleged donor and the donees have no relationship, moreover, there is no reason mentioned in the body of alleged gift-deed as to why the same was being executed in favour of the alleged donees. It is further stated that the donor and the donees belong to different villages; the donees do not have any property in the village from where the property has .Been donated, in their favour. The learned counsel further stated that there is concurrent finding of fact with regard to the point that the impugned gift-deed executed on 29-6-1994 is in fact a sale in the garb of gift- deed only to defeat the right of pre-emption. He further stated that the learned single Judge in the High Court has wrongly set aside the concurrent findings recorded by the Courts below, without even going through 'the evidence on record. He further contended that the High Court has also failed to point out any mis-reading or non-reading of the evidence on the part of the subordinate courts. He further contended that the High Court has not only erred in law while recording the impugned judgment on the point but has also ignored the principle of law laid down by the Apex Court in numerous pronouncements. He further argued that the statement of the appellant and the rival pre-emptor, Muhammad Najeeb Khan have been ignored by the High Court. The learned counsel argued that sections 4 and 24 of the Right of Prior Purchase Act, 1993 Bk. Have also been ignored while .Recording the impugned judgment. It is further submitted by the learned counsel that in civil cases, it is the preponderance of probability upon which matter is to be decided unlike criminal cases, whereas the 'High Court has also not taken into consideration this principle, while recording the impugned judgment. He has relied upon plethora of case-law in support of his contentions.
6. While controverting the arguments advance by the 'learned counsel for the appellant, Ch. Muhammad Taj, Advocate, the learned counsel for respondents Nos.1 and 2 defended the impugned judgment on numerous grounds. He submitted that the findings by both the Courts below were recorded without appreciation of the evidence, hence, the High Court has rightly set aside the same through the impugned judgment. There was no evidence available on record regarding sale of land and determination of sale price, hence, the trial Court as well as the first appellate. Court, failed to consider this aspect of the matter. The learned counsel further stated that the petition for leave to appeal was rightly disallowed on merits while upholding the judgment of the High Court. The learned counsel argued that no decree can be passed on the basis of surmises and conjectures; the impression that the donor got a decree of pre-emption through a suit filed against , the father of donees and after that sold the land to same party only to defeat the preemption right of the appellant herein, is not correct under law because there is no proof regarding sale consideration or its payment. The learned counsel finally submitted that the judgment of the High Court is quite in accordance with the provisions of law on the subject which need no interference by this Court, thus, the appeal merits dismissal.
7. We have heard the learned counsel for the parties and have also perused the record with care.
The High Court, through the impugned judgment disallowed the appeal filed by Raja Muhammad Najeeb and accepted the appeal filed by respondents Nos.1 and 2 herein by keeping the gift-deed intact. The High Court also set aside the judgments and decrees recorded by the Courts below.
Operative part of the judgment of the High Court is reproduced below:- ...The case of Raja Muhammad Najeeb, as stated earlier, is found to have rightly disallowed by the Courts below. The suit by Talib Hussain respondent, under the circumstances, is also dismissed consequently, the appeal by Boota Khan and another succeeds The judgments and the decrees recorded by the Courts below are hereby set aside. The Gift-deed in favour of Muhammad Boota and his brother shall remain intact."
It appears from perusal of the judgment of the High Court that the same has been recorded in ,a hasty manner and in one breath. The judgments and decrees of the Courts below have been set aside and the appeal filed by respondents Nos.1 and 2 has been accepted without assigning any cogent reason.
8. The first question which needs resolution is that whether the gift-deed executed in favour of respondents Nos.1 and 2 is in fact a sale-deed in the garb of gift-deed only to 'defeat the right of preemption available to the appellant It is crystal clear from the record that Ghulam Rasool; the father of Muhammad Bashir, the alleged donor, executed a sale-deed in favour of Fazal Dad, father of alleged donees. Muhammad Bashir, the son of vendor, pre-empted the sale-deed and after obtaining decree of pre-emption, got a C mutation attested in his favour on 28-6-1994. On the very next day, i.e 29-6-1994, he transferred the same property to Muhammad Boota and another, sons of Fazal Dad, through the alleged gift-deed. The question arises that why the alleged donor got the decree of pre-emption against Fazal Dad, after a protracted litigation up to this Court, if he had to transfer the same and to the sons of Fazal Dad. If, for the sake of argument, it is presumed and factually admitted that the alleged donor had a right of prior purchase and on the basis of this right, a decree of pre-emption was passed in his favour by the trial Court, he deposited the decretal amount and a mutation was attested in his name, then under what justification he transferred the same land to the same party through a gift-deed, is a question mark. In our view, in such like eventualities, the Courts of law have to apply judicial mind while recording the judgment and decrees where the right of the parties are involved. Wisdom and prudency are the best weapons to measure the gravity of the grievance of the parties. In the instant case, the trial Court as well as the District Judge applied their judicial mind while recording the judgment and decree concurrently in favour of the appellant, therefore, the High Court was not justified in setting aside the judgment and decree passed by the Courts below. Our this view, is supported by the case titled Miraj Bibi v. Azim Khatoon, reported as (1997 SCM R 1892), wherein it is observed that:-- "... When a transaction is sought to be declared as of sale which has been purportedly described to be otherwise than sale, the Courts are required to attend to the real nature of the transaction. A very apt distinction between a device and disguise had been drawn in the case of Ch. Ghulam Ahmad Khan v. Ghulam Qutbuddin and others (PLD 1960 (W.P.) Lah. 461) in the following illuminating paragraph:-- ' The essential difference between a disguise and device is that a disguise is utilised to hide the reality by a counterfeit appearance. A false exterior is given to conceal the inner. Reality. In a device, the appearance is not false but a method is invented or adopted to evade the ordinary or normal consequences of a situation and thus to achieve an object. In a device, there is always a scheme, a design or a stratagem which is real and not false."
' In the present case, the purchaser Fazal Dad, in fact was aware of the fact that there may be chances of loosing the property that is why a suit for pre-emption by the son of vendor, was got filed, and after getting decreed the suit for pre-emption, a legitimate course was, adopted in shape of gift-deed to alienate the land in favour of the sons of vendee only to defeat the right of prior purchase available to the appellant, therefore, in our view, a false cover is used to hide the inherent reality.
9. The next question which needs determination is that whether the gift-deed executed by Muhammad Bashir in favour of respondents Nos.1 and 2 is in fact a sale-deed. Nothing has been brought on record , in support of the version of respondents that the alleged gift-deed executed in their favour in fact is not a sale-deed. The sale-deed executed in 1986, by Ghulam Rasool vendor, in favour of Fazal Dad, vendee is admitted between the parties. Against the sale-deed executed in 1986, Muhammad Bashir, son, of vendor got pre-emption suit decreed in his favour on 28-6-1994 and after getting the pre-emption decree in his favour, transferred the same land to the sons of vendee, through a gift-deed dated 29-6-1994. The appellant claims that the alleged gift-deed is actually a sale-deed and vendor's son has executed the same only to defeat the right of prior purchase of the appellant. The claim of the appellant gets support from the statutory provisions.
According to section 4 of the Right of the Prior Purchase Act, the Court is empowered to declare any transfer or alienation of property as sale. For proper appreciation, relevant provision of section 4 of the Prior Purchase Act, is reproduced below:-- "4.................................
' 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 referred section reveals that the Court is empowered to declare any alienation .Of property in effect a sale. The trial Court as well as the District Judge have rightly appreciated the provisions of the Prior Purchase Act, while recording the judgments and decrees through which the gift-deed has been declared as sale-deed. Our this view finds support from the case titled Imtiaz Ahmad v.
Muhammad Ramazan, reported, as 1995 CLC 1857, it is observed that.
"...This is also intention of the Legislature by giving this power to Court of holding an alienation as sale which has not been shown as sale in order to prevent the defeating the purpose and intention of law of pre-emption by adopting any such device...
10. It may be observed here that the trial Court, and the first appellate Court recorded its findings concurrently after detailed scrutiny of the material on record. The entire evidence also shows that there is no relationship between the alleged donor and donees. Muhammad Boota, respondent No,1, donee, has mentioned in his statement recorded in this Court that he remained serving with the father of the donor for a period of 25 years but during cross-examination, it appears that this stand was not taken by him in the replication filed in the trial Court. Nothing has been brought on record to prove the stand of respondent No,1 that he remained serving with the father of donor for a period of 25 years. The respondents have not produced on record any witness in support, of their plea. Neither the presence of any witness at the time of execution of gift-deed in favour of respondents Nos.1 and 2 is proved nor any reason for donation of the property is mentioned in the alleged gift-deed.
11. Another aspect of the matter is that the alleged donor belongs to Rajpoot Family whereas the alleged donees, belong to Jat Family. The donor is residing in. Tehsil Panjeri District Bhimber whereas the donees are residing in Kalyal Mirpur. No relationship, whatsoever, between the donor and donee is established on record. It can safely be assumed that the gift-deed executed by Muhammad Bashir in favour of respondents Nos.1 and 2 is actually a sale-deed executed between the parties only to defeat the right of pre-emption available to the appellant. It is clear from the statement of Muhammad Boota that he has no other property situated in the area from where he got the property through gift-deed. The statement of Muhammad Najeeb clearly shows that the gift-deed executed between the donor and donees is actually a sale but the High Court has ignored this fact while recording the impugned judgment.
12. It is fundamental right of any, person to transfer or alienate the property according to his own will and choice but the Courts of law, while recording the judgment and decree in such cases, have to take into consideration the intention of the person, who alienates the property. The true question is to find out the real intention of the parties . Who entered into the transaction and the Court must decide the issue upon all available material. Of course, no hard and fast rules can be laid down to decide whether a transaction is or is not a sale but in case of reasonable doubt, it can be regarded as a sale keeping in view over all circumstances of the case. Every case however, must be decided on its own facts and the Court must come to the conclusion by looking into the incidents and conditions of the transaction and to find as to whether it was, in fact, a sale or not. It is the common experience that the parties in such like cases take all possible precaution to hide their intention and strict proof of the intention is not always possible. In the instant case, the father of respondents Nos.1 and 2 purchased the land from the father of donor through a sale-deed. The son of vendor, filed a suit for pre-emption which was decreed in his favour. After getting entered- his name in the record of rights, mutation was attested in favour of donor and on the very next day, he again transferred the same land to the same party through a gift-deed, against whom he has already got decree of pre-emption, it smells the intention of the donor.
13. The argument of the learned counsel for the appellant that the High Court has committed serious illegality while interfering with the concurrent findings recorded by both the Courts below, is of worth consideration. The Courts below have recorded concurrent findings of fact with regard to the point that the impugned transaction is a sale in the garb of gift-deed only to defeat the right of pre-emption. The concurrent findings could not have been set aside by the High Court even if upon re-appraisal of the evidence, a different view Would have been possible. It is settled principle that the concurrent findings of facts recorded by the Courts below cannot be interfered with except any misreading or non-reading appears on the face of record.
' The impugned judgment does not reveal any misreading or non-reading or any omission by the Courts below while recording the judgment and decrees in favour of the appellant. The High Court has also not mentioned any cogent reason to interfere with the judgments and decrees passed by the Courts below while recording the impugned judgment. Same view has been taken in a case titled Muhammad Arif v. Muhammad Boota and others, reported as 2007 SCR 363, whereby this Court observed as under:-- ..It is well-established principle of law that where there is concurrent finding on the question of fact, then this Court shall not embark upon the fresh appreciation of evidence while considering second appeal even if erroneous view has been drawn by both the lower Courts."
' In another case titled Imtiaz Ahmad v. Haji Muhammad Ramazan and 2 others, reported as 1995 CLC 1857, the same view has been taken wherein it is observed that:-- "... The conclusion arrived at by the two Courts below holding the transaction as sale is not the one which can be said that the same (conclusion arrived at) is the result of an illegality or an irregularity or misreading of facts..."
' In another case titled Muneer Hussain Shah and 4 others v. Kazim Hussain Shah and 15 others, reported as 1999 CLC 828, it is observed by this Court that:-- ".. Concurrent findings of facts recorded by the Courts below cannot be interfered with, unless some gross illegality, misreading, non-reading of evidence or some substantial injustice has been pointed out. This observation made by the High Court too is in consonance with the settled principles of law which is hereby endorsed and approved.
14. Another point which needs consideration is that the High Court has observed in the impugned judgment that the burden of proof in the case was upon the shoulders of pre-emptors. In our view in civil cases, it is the preponderance of probability upon which a matter is to be decided unlike criminal cases where a party is required to prove its case beyond any shadow of doubt. The burden of proof in civil cases shifts with the progress of case and looses its importance when both the parties have led 'evidence in the case. In a civil suit onus to prove an issue may change sides in the light of the evidence led by the party on which onus is initially placed. In the present case, as soon as the facts mentioned above were established, the onus of proof was shifted upon respondents Nos.1 and 2. It was for them to make out that the gift-deed allegedly executed in their favour is in no manner a sale of the land given to them by Muhammad Bashir. The approach made by the High Court is not correct in the instant case. It was for the respondents Nos.1 and 2 to prove that the gift-deed was a genuine transaction and not a mere device to defeat the right of preemption vested in the appellant. Reliance can be placed on a case titled Haji Muhammad Idrees v. Mahmood and another, reported as 2000 M LD 1813 'wherein it is observed as under:-- ...In civil cases, unlike the criminal cases the plaintiff has not to prove his case against his opponent beyond any reasonable shadow of doubt. On the other hand, if the preponderance or probability of evidence is in favour of a particular party, that party is likely to succeed. In our view, the initial burden of proof of the material issue Nos.2 to 4 was on the plaintiff who successfully discharged the same and it shifted upon defendant No,1 who was to rebut the same but in rebuttal we find no evidence on behalf of defendant No,1 as he did not opt to appear in the Court. Needless to say that the statement of defendant No,2 is neither relevant nor sufficient to rebut the burden of proof initially discharged by the plaintiff. It is correct that initial burden of proof in a case is always on the plaintiff, but if the plaintiff discharges that onus and makes out a case which entitles him to relief, the onus shifts on defendant to prove the circumstances, if any, which disentitles the plaintiff to that relief. It is not always easy to determine as to what particular point it shifts from plaintiff to defendant as evidence gradually continues to be adduced but at the conclusion of trial when the issue come to be judged it has to be seen whether the initial onus which section 118 of Qanun-e- Shahadat casts upon plaintiff has been discharged or not."
' The same view has been taken by this Court in a case titled Muhammad Said Khan and 32 others v. Abdul Qayyum Khan, reported as 2001 YLR 3253 wherein is observed that:-- "...It may also be clarified that unlike a criminal case in a civil case a plaintiff is not supposed to prove his case beyond any reasonable shadow of doubt but the Court of law is expected to decide a dispute on the basis of preponderance of evidence."
' In another case titled Aksar Ali and 2 others v. Fazal Karim and 11 others, reported as 1982 CLC 1309 it is observed that:-- ..,A wrong notion, it appears, is entertained by the subordinate Courts that the quantum of proof in the civil cases is as much strict as is required in criminal cases. In fact it is not so. In civil cases only preponderance of probability is sufficient to record a finding in favour of the parties, while in criminal cases the offence must be: established beyond reasonable doubt. It, therefore, follows that in civil cases, the Courts have to see cumulative effect of all the' material placed on record and if such material creates the preponderance of probability in favour of a party, that party must win the case."
In the case in hand, it was for the respondents Nos.1 and 2 to rebut the evidence produced by the plaintiff that the gift-deed executed between the donor and donees is actually a sale in the garb of gift-deed but they failed to do so. The learned High Court has not considered this aspect while recording the impugned judgment.
' For the reasons listed above, we are of the view that the judgment of the High Court is not liable to be maintained. Therefore, the appeal is accepted and the judgment and decree passed by the High Court on 20-5-2005 is set aside. Consequently, judgment and decree of the District Judge dated 22-4-2004 is restored in its tone and spirit. No order as to costs.