' ABDUL LATIF KHAN, J.---The instant civil revision under section 115, C.P.C. Is directed against the judgment and decree dated 26-3-2012 of the learned Additional District Judge-III, D.I.Khan whereby appeal of the respondents Nos.1 to 3 against the judgment and decree dated 7-5-2009 of the learned Civil Judge-IV, D.I.Khan has been accepted.
2. Short facts of case are that the predecessor of the petitioners filed a suit for possession through exercise of preemption against the predecessor of respondents Nos.1/1 to 1/6, respondents Nos.2 and 3 (vendees) and predecessor of respondents Nos.4/1 to 4/11, in respect of property fully detailed in the head note of plaint. The suit was resisted by defendants by filing their written statement. The learned trial court framed issues from the divergent pleas of the parties, the parties led their respective evidence where after the learned trial court decreed the suit vide its judgment and decree dated 7-5-2009. The decree was challenged by the petitioners and respondents in separate appeals, learned appellate court after hearing arguments of the learned counsel for the parties, accepted the appeal of respondents and dismissed the appeal of petitioners through a single judgment and decree dated 26-3-2012, hence the instant revision petition.
3. Learned counsel for the petitioners contended that appellate court has wrongly upset the findings of trial court with regard to issue No,4, in respect of talbs, decided by the trial court in his favour, and rightly did so, but reversed by the appellate court without any justification. It was contended that burden of proof lies upon the vendee/defendant that suit mutation was in fact exchange and not sale but no serious effort made in this respect. It was argued that factum of better management not averred in the pleadings and moreover not proved in the evidence and as such findings regarding exchange are alien to law. It was contended that minor discrepancies were made basis for dismissal of plaintiff's suit which is against the establish principles of law. He argued that sale made through mutation in question but colour of exchange was given to it, in order to ward off right of pre-emption of the plaintiff and condition precedent for exchange were lacking in the instant matter, warrants interference by this court in revisional jurisdiction.
4. As against the above, learned counsel for the respondents contended that both the mutations were attested for exchange and it was the bounden duty of the plaintiff, as burden heavily lies upon him, to prove that mutation attested for exchange were in fact sale. He contended that exchange mutations are not preemptible and on this score too suit is liable to be dismissed. He argued that there are material contradiction in the statement of Witnesses produced on behalf of plaintiff and appellate court has rightly non-suited the plaintiff. He argued that trial court had wrongly decreed the suit and reversed by appellate court, and rightly did so, as there were numerous lacunas in the case of plaintiff, fatal to case.
5. I have heard arguments of the learned counsel for the parties and have gone through the record of the case.
6. The perusal of record reveals that plaintiff instituted a suit for possession through pre-emption against the defendants (parties to Mutation No,5552 attested on 20-3-1996), Exh: P. W.3/1. It appears from the notice of Talb-i-Ishhad Exh:P.W.6/5 and Exh.P.W.6/6 that plaintiff alleged that sale transaction took place for consideration of Rs,10,000 and to ward off the right of pre-emption of plaintiff, colour of exchange given to it. The same stance taken in the plaint with addition that vendor to the transaction was also arrayed as defendant to the suit. In rebuttal,. Written statement filed by the defendant/vendee is also about the purpose of exchange and not averred about better management in it, however, issue No,3 to this effect was made. As plaintiff died during the proceeding, his legal heirs, appointed the attorney namely Aslam who deposed on their behalf as P.W.S. He stated that he was attorney for plaintiff vide Exh:P.W.5/2 and has been attorned by his legal heirs through Exh:P.W.5/1. He added that property in dispute was in fact sold for consideration of Rs,10,000 and has been wrongly given colour of exchange. This part of the statement has not been cross examined categorically by the defendants, which amounts to admission on the part of other side. Reliance is placed on 'Muhammad Akhtar's. Case-. (2001 SCM R 1700), wherein it was observed- that fact narrated by one party, remains unchallenged the same amounts to admission on the part of other party.
7. Reliance also placed on Haft Muhammad Ameen's case (PLD 2005 Peshawar 69) wherein same view has been affirmed.
8. He was rather asked in cross examination that property allegedly exchanged in lieu of disputed property, was purchased by him and is with him now and has been mutated in his name. Which clearly shows that connected other mutation has also been declared as sale and plea of exchange has not been accepted by the court and has attained finality. In response to that Muhammad Ramzan defendant No,1 appeared. He added a word "Sahoolat" in his statement, as purpose of exchange. He has not mentioned the factum of better management in his written statement and has also not even used word "Sahoolat" in his pleadings and is silent to this extent which is departure from pleadings and cannot be allowed unless specifically B permitted by the court through amendment in pleadings reliance can be safely placed on Din Muhammad's case (2001 SCM R 1992), wherein their lordship of apex Court disallowed departure from pleadings.
9. On the other hand, the alleged "Sahoolat" has not been proved through tangible documentary or oral evidence rather solitary statement of defendant No,1 recorded to this effect, insufficient for the purpose. The burden to prove the genuiness of exchange mutation heavily lies upon its beneficiary claiming exemption from preemption. Neither patwari halqa nor attesting revenue officer examined who were important entities. The marginal witness/lumbardar/councillors were also not examined. As mutation creates no title, C and once it is challenged, the burden shifts upon person to prove the original transaction which resulted into entry and attestation of mutation, but no serious effort made in this case and in peculiar circumstance of case exchange stand not proved.
10. Reliance can be placed on Muhammad Anwar's case (PLD 2003 SC 688), wherein their lordship of apex court observed that:-- "It is a settled principle of law that a mutation confers no title. Once a mutation is challenged, the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute. This of repeated principle of law is quite logical because a mutation not being a title deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of a mutation. Respondent. Altaf Ahmad has utterly failed to revert back to any transaction and bring on record any oral or documentary evidence thereof. The burden squarely lay on him to prove the transaction because the existence thereof has throughout been alleged by him in affirmative. He was bound to fail in the event of the non-proof of transaction. Only the trial court realised it. It is again settled principle of law that in order to prove the existence of a transaction of exchange through mutation, the party that relies on such mutation is bound to prove both of them. Altaf Ahmad has utterly failed to prove the transaction in Karor, District Layyah through Mutation No,44 attested on 16-10-1983. He has also failed to prove that the possession of such 120 Kanals had physically been delivered to Muhammad- Akram etc. This was another blow to the existence of any exchange transaction between the parties."
11. To exclude the transaction from definition of exchange of agriculture land for better management, shall not be part of sale, but where no evidence produced that exchange transaction made for better management nor even averred in the written statement and for the first time given passing by remarks by the defendant in his solitary statement regarding "Sahoolat" would not amount to exchange for better management nor fulfils the requirement of exchange as record is silent to this extent and would not exclude the transaction from definition of sale, hence pre-emptible.
12. Akbar Nawaz's case (1995 MLD 1061) can be relied upon, in this regard, wherein it was held that:-- "As the new law of Pre-emption (Act X of 1987) would lay down it is only a sale defined under section 2(d) which is pre-emptible and the only transaction which is exempted, under sub-clause
(iv) of subsection (d) of section, 2 is the exchange of agricultural land done for better management. To be more clear, an exchange of agricultural land for better management would not be included in the definition of sale but if an exchange is not for better management, it would be included in the definition of sale being permanent transfer of ownership of an immovable property in exchange for another immovable property where each would be taken as valuable consideration for the other.
' The word "better management" is not defined in the Act and rightly so because it can vary front 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 is required 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 defendants 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 not acceptable.
' Moreover, the word better management is used with reference to the already owned property of a party for which the disputed property is obtained in exchange so that some degree of better management of the property of the transferee is attained by acquiring the suit property. 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."
13. So far as performance of talb is concerned, as the plaintiff has since dead, his legal heirs were represented through their attorney Muhammad Aslam P.W.5 who reiterated the stance taken in the plaint. P.W.4 informer fully supports the version of plaintiff. P.W.6 petition/deed writer appeared who scribed notices Talb-iIshhad duly witnessed by marginal witnesses Muhammad Yasin and Altaf who were produced as P.W.7 and P.W.8 respectively. P.W.2, Town Inspector, G.P.O, D.I.Khan who confirmed postal receipts Nos.1250 to 1252, was produced. The receipt of notices Talb-i-Ishhad were denied by the defendants in their written statement and as such there were no contradiction in the statement of P,Ws. Regarding performance of Talb-i-Muwathibat and performance of Talb- eIshhad stand proved through P.W.2, P.W.7 and P.W.8 to the extent to scribing, verification and delivery and thus plaintiff successfully proved talbs in accordance with law. The learned appellate court has focused upon minor discrepancies which were but in material and could not be termed as variation in statement.
14. As far as market value of the land in dispute is concerned, as the transaction was wrongly given colour of exchange, therefore, no amount mentioned in the mutation as sale consideration under section 28 of Khyber Pakhtunkhwa Preemption Act, 1987 provides the method to assess the market value. Ausat Yaksala prepared by patwari placed on file as Exh:P.W.1/6 to Exh:P.W.1/9, piece of land comes out to Rs,40089.60 and Rs,23273.80. Keeping in view the luke in prices Rs,40089 has been fixed as market value by the learned trial court and rightly done so, which is upheld.
15. For the aforementioned reasons, I allow this petition and set aside the judgment and decree passed by the learned appellate court and restore the judgment and decree passed by learned trial court dated 7-5-2009 with no order as to cost.