' EJAZ AFZAL KHAN, J. This appeal with the leave of the Court has arisen out of the judgment dated 07.02.2007 of the Lahore High Court, Multan Bench, Multan whereby the learned Judge in its Chambers dismissed the R.S.A. filed by the appellants and maintained the judgments and decrees of the fora below.
2. The facts culminating in the instant appeal are that Saeed Ahmed and Mst. Sughran Bibi allegedly exchanged their landed property measuring 41 kanals, 01 marla bearing Khata Nos. 191 and 350 situate in Mauza Qazipur, Tehsil Alipur, District Muzaffargarh with the landed property of the appellants measuring 40 kanals bearing Khata No. 360 situate in the same Mauza vide registered deed No. 1438, dated 13.09.1975. The respondent filed a suit for the enforcement of right of pre-emption against the appellants, alleging therein that the transaction was one of sale and not exchange and as such was pre-emptible. The suit of the respondent was decreed vide judgment and decree dated 10.03.1981. Appeal preferred by the appellants was allowed by the learned Addl. District Judge-II, Muzaffargarh vide judgment dated 23.06.1982 and the case was remanded to the learned Civil Judge for decision afresh after ascertaining the quality and market value of the landed properties thus exchanged by issuing a local commission. The learned Civil Judge after doing the needful decreed the suit filed by the respondent vide judgment and decree dated 24.10.1983. Appellants again preferred an appeal against the judgment and decree of the learned Civil Judge but it was dismissed by the learned Addl. District Judge-II, decree dated 22.11.1986. ' Appellants preferred R.S.A. therefore the High Court but it too was dismissed vide judgment dated 7.2.2007.
3. Leave was granted to consider inter alia, whether mere non-delivery of possession or inequality of value of the lands could ipso-facto justify the conclusion that it was not the case of exchange but that of sale.
4. Learned Sr. ASC appearing for the appellants contended that where neither the oral evidence of the parties nor report of the Commissioner conclusively gives basis for determining the quality and market value of the landed properties so exchanged, it cannot be said that the property transferred by the appellants to the persons on the other end was of inferior in its quality and market value. The learned Sr. ASC next contended that where the execution of the registered exchange deed has not been disputed, no oral statement tending to vary its terms could be admitted. The finding, the learned Sr. ASC added, that the appellants never delivered the possession of their property transferred in exchange to PW.1 and PW.2 is based on non-reading of evidence because decree in SO No. 592 of 1977 which proves otherwise has not been taken notice of. The learned Sr. ASC by concluding his arguments submitted, that where the principles of law of evidence regulating appraisal of evidence have neither been followed by the fora below nor the High Court, their finding does not merit any sanctity.
5. As against learned ASC appearing on behalf of the respondent contended where the transferors of the suit property themselves appeared in the Court and stated that transaction entered into between them and the appellants was one of sale and not exchange, no other evidence could be better than that in this behalf. The learned ASC next contended that where all the fora including the High Court, unanimously held that the transaction in between the parties was sale and not exchange, this Court cannot embark on reappraisal of evidence nor can it substitute its view for that of fora below on a question or fact even if on reappraisal it is equally possible. Want of delivery of possession of the landed property allegedly transferred by the appellants in exchange, the learned ASC maintained, is yet another circumstance which would belie the nature of transaction as an exchange. When asked whether an oral statement of a party to the deed varying or tending its terms, could be admitted into evidence in view of Article 103 of Qanoon-e-Shahadat, Order 10 of 1984, the learned ASC for the respondent submitted that application of this Article could be attracted to the instrument executed between the parties to the litigation and not their witnesses.
6. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.
7. According to the deed executed between the parties, Saeed Ahmed and Mst. Sughran Bibi exchanged their property with that of the appellants. As the value of the subject-matter exceeded hundred rupees, it was required to be reduced into writing and registered under the Registration Act. It was accordingly reduced into writing and registered at the instance of the parties mentioned above. The respondent, however, averred that it was a sale and not exchange. The burden, therefore, lay on him to prove that it was sale. In his effort to prove is stance, he produced Saeed Ahmed and Mst. Sughran Bibi were examined as PW.1 and PW.2. Both the P:Vs stated in their evidence recorded in the Court that the transaction entered into between them and the appellants was one of sale and not that of an exchange. This statement, so to say, varies the terms of the deed and substantially so. The question that arises for the adjudication of this Court is whether an oral statement of a party to an instrument which varies or tends to varies its terms could be admitted into evidence? The answer to this question is a plumb no because Article 103 of Qanoon- e-Shahadat Order 10 of 1984 excludes oral statement as between the parties to any such instrument or their representatives. The rationale behind this Article is that inferior evidence is excluded in the presence of superior evidence; that an agreement finding expression in writing is an outcome of deliberate and well thought out settlement; that a party acknowledging a fact in writing is precluded to dispute it and that an agreement reduced into writing is immune from mischief, failure and lapse of memory. It, therefore, follows that oral statements of PW.1 and PW.2 which tend to vary the terms of the deed mentioned above are inadmissible in evidence. No conclusion could be drawn much less a judgment rendered on the basis of these statements. If these statements are excluded, we are left with bare words of the respondent. Bare words, we afraid, cannot dislodge the presumption of truth attached to a registered deed. Any finding based on such statements is no finding in the eye of law.
8. The argument that application of this Article can be attracted to the instrument executed between the parties to the litigation and not their witnesses being against the letter and spirit of the Article cannot be given any weight when the Article clearly provides "that no evidence of any oral agreement or statement shall be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms".
9. Inequality between the quality and market value of the landed properties so exchanged was trumpeted before the fora below and even before this Court but it was neither averred in the plaint nor any significant evidence was brought on the record to substantiate it. Evidence of Commissioner could have helped us, but it being one-sided does not deserve any consideration.
We, therefore, hold that exchange in-between the appellants and the persons on the other end cannot be looked askance at on this score.
10. Decree in a Suit No. 592 of 1977 instituted by Muhammad Irshad against PW.1 and PW.2 would show that it were the latter and not the appellants who dealt with the property as owners after its exchange, therefore, the argument that want of delivery of possession of the landed property allegedly transferred by the appellants in exchange would belie the nature of transaction as an exchange is wholly incorrect and untenable.
11. Granted that this Court cannot substitute its view for that of the first and second Court of appeal on a question of fact but where a view has been based on no evidence or an evidence which is inadmissible, the question surfacing for the adjudication of this Court would not be one of fact but of law. This Court being the Court of ultimate jurisdiction has the powers to undo a finding thus rendered.
12. For the reasons discussed above, we allow this appeal, set aside the impugned judgments and decrees and dismiss the suit of the respondent with no order as to the costs.