' MUNIR AHMED CHAUDHARY, J.---The supra titled appeals have been filed against the judgments and decrees of District Judge Bhimber dated 13-9-2008, through which the appeals filed by the appellants of both the appeals were dismissed by recording separate judgments. Both the judgments and decrees relate to the same parties and disputed land. So, the appeals are disposed of through a single judgment.
2. Brief facts giving rise to Appeal No.307/08 are that the appellant Muhammad Iqbal filed a suit for possession by pre-emption of the land measuring 27 Kanals and 13 Marlas bearing survey Nos. 221 (03 Kanals), 190, 261, 264, 309, 468, 484, 988 and 1057 (24 Kanals and 13 Marlas), Khata Nos. 11/11 and 12/12, Khewat No. 4/2 situated at village Bhoto Sayal Tehsil and District Bhimber against the present respondents in the court of Senior Civil Judge Bhimber. It was stated in the suit that the said land was transferred by respondent No.7 (Basharat Ali) to respondents Nos. 1 to 6 through a sale and showing the same as a gift-deed through an attorney Muhammad afique/father of respondents Nos. 1 to 3 and brother of respondents Nos. 4 to 6. The said gift-deed was executed with the intention to deprive the appellant/plaintiff of his right of prior purchase. It was prayed to declare the said gift-deed as a sale-deed and to issue a decree for possession of the suit land by pre- emption.
3. The suit was contested by the respondents/defendants and written statement was submitted by them, stating therein that the suit land was not transferred by sale and it was genuinely gifted to respondents Nos. 1 to 6. It was prayed to dismiss the suit.
4. After due process of law, the suit was decreed on 15-12-2006. The respondents/defendants preferred an appeal before District Judge Bhimber. After hearing the parties, the said appeal was accepted by District Judge Bhimber and the judgment and decree passed by the trial court was set aside and the suit filed by the present appellant/plaintiff was dismissed. Feeling aggrieved, the present appellant Muhammad Iqbal has filed the above-mentioned appeal before this court.
5. The facts forming the background of other Appeal No. 394/2008 are that the appellant/plaintiff Basharat Ali (the transferor of the disputed land) filed a suit for declaration/ possession regarding the disputed land on 14-2-2007 against the respondents including Muhammad Iqbal (the appellant of the above-mentioned Appeal No. 307/08) in the court of Senior Civil Judge Bhimber, stating therein that the disputed land was pre-empted by the appellant/plaintiff Basharat Ali through a judgment and decree passed on 13-4-1991. The appellant Basharat Ali and the appellant of the other appeal Muhammad Iqbal were declared having right of prior purchase regarding the disputed land measuring 27 Kanals and 13 Marlas. It was declared that the appellant/plaintiff Basharat Ali will have prior right as compared to the appellant Muhammad Iqbal and Basharat Ali was asked to deposit decretal amount in the court. It was also declared that if Basharat Ali fails to deposit the decretal amount, then Muhammad Iqbal will deposit the same. The appellant/ plaintiff Basharat Ali deposited the decretal amount and the decree was issued in his favour. The matter was challenged before the District Judge, High Court and the apex Court but the judgment and decree dated 13-4-1991 remained intact in favour of the appellant/ plaintiff Basharat Ali.
6. It was further stated in the suit that the appellant Basharat Ali executed a power of attorney in the name of the respondent Muhammad Rafique and went back to France as he was residing abroad. The said Muhammad Rafique transferred the said land in the names of his sons and brothers (respondents Nos. 2 to 7) fraudulently and by deceiving the appellant. Later on, the said Muhammad Rafique managed with connivance of respondent No.8 Muhammad Iqbal who filed a suit for pre-emption and a judgment and decree was issued in favour of the said Muhammad Iqbal on 15-12-2006. It was prayed to issue a decree by cancelling the gift-deed executed by respondent Muhammad Rafique as attorney dated 11-3-2004 along with the mutation and to set- aside the judgment and decree by pre-emption dated 15-12-2006 passed fraudulently and with connivance.
7. The suit filed by the appellant Basharat Ali was rejected by the learned Senior Civil Judge Bhimber on 28-2-2007 under Order VII Rule 11 of C.P.C. The appellant Basharat Ali preferred an appeal before District Judge Bhimber, which was also dismissed on 13-9-2008. Feeling aggrieved, the appellant Basharat Ali has filed the instant second appeal before this court.
8. Arguments were advanced by the learned counsel for the parties. Mr. Abdul Majeed Mallick Advocate, the learned counsel for the appellant Muhammad Iqbal argued that the suit land was firstly preempted by the respondent Basharat Ali (appellant of Appeal No. 394/2008). The suit land was sold by father of the said Basharat Ali to one Noor-Dad who was real maternal uncle of Muhammad Rafique. The said Noor-Dad executed a gift-deed in the name of Mst. Qasim Bibi who was mother of the said Muhammad Rafique. The present appellant Muhammad Iqbal filed a suit of pre-emption against the said Noor Dad and Muhammad Sadiq/father of the appellant Basharat Ali. The respondent Basharat Ali also filed a suit for preemption. Ultimately, the suit filed by said Basharat Ali was decreed and the sale-deed executed in favour of Noor-Dad and the gift-deed executed in favour of the said Mst. Qasim Bibi were cancelled. Then, the respondent Basharat Ali executed a power of attorney in the name of Muhammad Rafique who later on executed a gift- deed in favour of his sons and brothers. All the process was adopted to give affect the sale of the disputed land. The witnesses produced by the appellant Muhammad Iqbal have corroborated the version taken by him in the suit. Even, the evidence placed on record by the respondents corroborates the version of the appellant Muhammad Iqbal. The learned counsel further argued that the court has got power to declare the impugned gift-deed as a sale and to pass a decree on the basis of right of prior purchase. The learned counsel requested to accept the appeal and referred the following precedents in support of his arguments.
1987 SCM R 1277, 1990 CLC 761 and 1996 CLC 1161.
' An unreported case decided by the apex Court titled as Talib Hussain v. Muhammad Boota and others under Civil Appeal No. 40/06 dated 28-5-2012.
9. While controverting the learned counsel for the appellant Muhammad Iqbal, Ch. Muhammad Afzal Advocate, the learned counsel for the respondents (except Basharat Ali Muhammad Iqbal) of both the appeals contended that the respondent Basharat Ali was owner of the disputed land through a judgment and decree passed in his favour by pre-emption. The said Basharat Ali transferred the disputed land through his attorney Muhammad Rafique in the names of sons and brothers of Muhammad Rafique by executing a gift-deed. The said land was transferred with the consent of owner of the land. The learned counsel requested to dismiss both the appeals.
10. Ch. Muhammad Mumtaz Advocate, the learned counsel for the respondents (except Basharat Ali and Muhammad Iqbal) owned the arguments advanced by Ch. Muhammad Afzal Advocate and referred the following precedents in support of his arguments:-- ' PLD 1985 Lah. 630, 1992 SCR 265, 1997 CLC 1768 and 2007 SCM R 1275.
11. Mr. Muhammad Ayub Sabir Advocate, the learned counsel for the appellant Basharat Ali contended that the power of attorney executed by the appellant Basharat Ali was wrongly utilized and the attorney Muhammad Rafique transferred the land owned by the appellant Basharat Ali fraudulently in the names of his sons and brothers. The appellant Muhammad Iqbal with connivance of the said Muhammad Rafique filed a suit for preemption whose suit was decreed.
The learned counsel requested to dismiss the appeal filed by Muhammad Iqbal and to accept the appeal filed by Basharat Ali and to remand the suit filed by Basharat Ali to the trial court for its disposal on merits.
12. After hearing the arguments advanced by the learned counsel for the parties, I have gone through the record and perused the precedents in the light of the facts of the present case carefully and minutely. The admitted facts between the parties are that Muhammad Sadiq/father of the appellant Basharat Ali executed a sale-deed of the disputed land in the name of Noor-Dad.
The said Noor-Dad was real maternal uncle of the respondent Muhammad Rafique. The said Noor- Dad transferred the disputed land to his sister Mst. Qasim Bibi/mother of the respondent Muhammad Rafique. Thereafter, the appellant Muhammad Iqbal filed a suit of pre-emption regarding sale of the disputed land. The appellant Basharat Ali also filed a suit of pre-emption regarding the same land. Both the preemptors were declared having right of prior purchase against the vendee Noor-Dad. It was ordered that Basharat Ali has a preferential right as compared to the appellant Muhammad Iqbal and the said Basharat Ali will deposit the decretal amount of Rs. 2,50,000 in the court. If Basharat Ali fails to deposit the said amount, then the appellant Muhammad Iqbal had to deposit the said amount. The appellant Basharat Ali deposited the decretal amount in the court and his suit was decreed. The appellant Basharat Ali became owner of the disputed land vide judgment and decree of Senior Civil Judge Bhimber dated 13-4- 1991. Later on, the appellant Basharat Ali executed a power of attorney regarding the disputed land in the name of respondent Muhammad Rafique. The said Muhammad Rafique transferred the disputed land measuring 27 Kanals and 13 Marlas in the names of his sons and brothers through a gift-deed on the basis of the said power of attorney.
13. The above-mentioned facts are clearly admitted by the parties through their pleadings. The proposition which needs to be resolved firstly is that whether the gift-deed executed by the appellant Basharat Ali through his attorney Muhammad Rafique in the names of sons and brothers of the said Muhammad Rafique is in fact a sale in the garb of a gift-deed only to defeat the right of pre-emption of the appellant Muhammad Iqbal. It is a question mark that the appellant Basharat Ali pre-empted the suit land by filing a pre-emption suit against his father and the vendee Noor- Dad. The appellant Basharat Ali was admittedly residing abroad and the respondent Muhammad Rafique was pleading his case as attorney. On the other hand, the vendee Noor-Dad was real maternal uncle of said Muhammad Rafique and the said Noor-Dad transferred the disputed land in the name of Mst. Qasim Bibi who was mother of the respondent Muhammad Rafique. The facts and behaviour of the said Muhammad Rafique reflect that he played the real role in the litigation for his own benefits. The appellant/plaintiff Muhammad Iqbal, took this version that the disputed land was purchased firstly by Ahmed Din father of the respondent Muhammad Rafique from father of the appellant Basharat Ali. The said Ahmed Din was not a State Subject, so the land was transferred in the name of Noor-Dad who was maternal uncle of Muhammad Rafique. It was a Bainami transaction, that is why the said Noor-Dad transferred the disputed land in the name of Mst. Qasim Bibi/mother of the said Muhammad Rafique. The appellant Muhammad lqbal also took this version that the sale money of worth Rs.2,50,000 was in fact paid by Muhammad Rafique. The question also arises that why the appellant Basharat Ali got a decree of pre-emption after a long litigation up to the apex Court, if he had to transfer the same land to the same party. In presence of such like eventualities, a judicial mind has to be applied while recording findings on the matter.
Muhammad Rafique, in fact played the principal role in the litigation regarding the disputed land.
He pleaded the first suit filed by the appellant Basharat Ali being his attorney up to the apex Court, he also pleaded on behalf of his sons and brothers as an attorney in the suit filed by the appellant Muhammad Iqbal. Such like behaviour reflects that Muhammad Rafique is the real beneficiary and this fact cannot be ignored. The witnesses produced by the appellant/plaintiff Muhammad Iqbal stated before the court that the said Muhammad Rafique in fact paid the sale money of the disputed land to father of the appellant Basharat Ali and he was Muhammad Rafique who got filed a pre-emption suit by Basharat Ali to deprive the appellant Muhammad Iqbal of his right of prior purchase. Muhammad Shafi a witness of the appellant Muhammad Iqbal who is real paternal uncle of the respondent Muhammad Rafique corroborated the version of the appellant Muhammad Iqbal as taken in the suit. It is evident from the revenue record which shows the sons and brothers of Muhammad Rafique as vendees. Copy of record of rights pertaining to the year 2003-04 Exh. "DA" and copy of periodical record Exh. "DB" produced by the said Muhammad Rafique in his statement being attorney of the appellant Basharat Ali, his sons and brothers (the respondents) before the court. A copy of Jamabandi pertaining to the year 1999-2000 produced by Muhammad Rafique with the gift-deed and power of attorney Exh. "DC and DD", the mother of Muhammad Rafique Mst. Qasim Bibi has also been shown as a vendee regarding the disputed land.
14. The record reveals that the disputed land remained in possession of Ahmed Din and after his death in possession of the said Muhammad Rafique. Firstly, on payment of rent and thereafter on behalf of the said Noor-Dad, Mst. Qasim Bibi and the sons and brothers of Muhammad Rafique up till now. The record also reveals that the transferor and the transferees failed to appear before the court as witnesses in support of their version. It was only Muhammad Rafique who pleaded and appeared everywhere on their behalf. Failure to appear as witnesses by the respondents raises a presumption in favour of the appellant/plaintiff Muhammad Iqbal that the disputed land was in fact transferred through a sale. Moreover, no relationship between the said Basharat Ali and the sons and brothers of Muhammad Rafique has been brought on record. Even, no consideration and purpose for transfer of the disputed land was mentioned in the deed. The respondents of Appeal No.307/08 have failed to rebut the version of the appellant Muhammad lqbal that the first sale in the name of Noor-Dad was a Bainami transaction as the said Muhammad Rafique and his father were not State Subjects. This version also remained unrebutted that the decretal amount fixed in the judgment and decree dated 13-4-1991 was paid by Muhammad Rafique and not by the decree holder Basharat Ali and the price fixed in the said decree was in fact a consideration of the transaction made later on. The execution of power of attorney in favour of Muhammad Rafique and the gift-deed executed later on were purposely designed to transfer the disputed land in favour of kith and kins of Muhammad Rafique.
15. The reasoning recorded by the learned District Judge Bhimber that the appellant Muhammad Iqbal should have filed a separate suit to establish the transaction as a sale and after establishment of the same, the said Muhammad Iqbal should have filed a separate suit for preemption, has no legal footing. Section 4 of the Right of Prior Purchase Act empowers the court to declare that any transaction purporting to be other than a sale is in fact a sale. The learned Senior Civil Judge Bhimber has rightly appreciated this provision of Prior Purchase Act while recording the judgment and decree through which the gift-deed was declared as a sale-deed. It has been held in the precedent 1995 CLC 1857 as under:-- ...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..."
The respondents could not produce any witness in support of their version.
' Even, no witness present at the time of execution of the said gift-deed has been produced nor any reason for donation of the said property has been mentioned in the said gift-deed.
16. An owner of a property has a right to transfer the same according to his choice, but the intention of that owner has to be taken into consideration. The court has 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. It is the common experience that the parties in such like cases take all possible precautions to hide their intention and strict proof of the intention is not always possible to be placed on record. This principle has been laid down in the judgment titled as Talib Hussain v.
Muhammad Boota and others referred by the learned counsel for the appellant Muhammad Iqbal.
' In the present case, the appellant Basharat Ali filed a suit for pre-emption regarding the property, which was sold by his father. The suit was decreed in his favour. A mutation was attested in his favour and thereafter he again transferred the same land to the same party through a gift-deed. It reflects the intention of the said Basharat Ali.
17. It is an admitted principle of law that matters in civil cases have to be decided unlike criminal cases where a party is required to prove its case beyond any shadow of doubt. This principle has also been laid down in the above-mentioned case titled as Talib Hussain v. Muhammad Boota and others decided by the apex Court under Civil Appeal No. 40/2006 dated 28-5-2012 as under:-- "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 evidence to defeat the right of preemption vested in the appellant."
In the present case, it was for the respondents to rebut the evidence produced by the appellant/plaintiff Muhammad Iqbal that the gift-deed was actually a sale in the garb of a gift- deed, but the respondents failed to do so. The record reveals that only the said Muhammad Rafique appeared as a witness on behalf of himself and no witness to corroborate his version has been produced before the court. Even other respondents/defendants produced no evidence at all.
18. The record reveals that only respondent No.3 Muhammad Danish was reported to be a minor and the learned Senior Civil Judge Bhimber appointed Ch. Ghazanfar Ali Advocate as guardian- adlitem of the said minor. No other respondent was reported to be a minor. So, the version of the respondents that the minor respondents/defendants were not impleaded properly in accordance with the provisions of law, has no substance.
19. The appellant/plaintiff Muhammad Iqbal took this version that he has got a prior right of purchase regarding the disputed land as compared to the respondents. The said Muhammad Iqbal has already been declared having a right of prior purchase regarding the disputed land according to the judgment and decree dated 13-4-1991. The appellant/plaintiff, Muhammad Iqbal has placed his evidence on record that he is a co-sharer in the Khewat and Khata of the disputed land and the respondents have not denied this fact. The respondents have failed to place any document on record to show that they are co-sharers in the Khewat and Khata of the disputed land. So, the appellant/plaintiff has proved that he has got a prior right of purchase regarding the disputed land.
20. As far the price of the case property is concerned, it was proved in the previous litigation that the disputed land was sold against a price of Rs. 2,50,000. The said disputed land was pre-empted by the respondent Basharat Ali and the said decree was issued against a price of Rs.2,50,000 as decretal amount. No rebuttal has been placed on record.
' Having in view the above-mentioned circumstances, it is crystal clear that the appellant/plaintiff Muhammad Iqbal has proved that transfer of the disputed land in favour of the respondents was in fact a sale against a price of Rs. 2,50,000 and he has got prior right of purchase regarding the disputed land.
21. As far Appeal No. 394 of 2008 is concerned, both the subordinate courts have recorded concurrent findings and it has been declared that the appellant Basharat Ali and the appellant Muhammad Iqbal have been contesting the cases regarding the disputed land for many years and a preemption decree was issued in favour of the appellant Basharat Ali. The said Basharat Ali executed a power of attorney in favour of the respondent Muhammad Rafique and the disputed land was transferred in the names of sons and brothers of the said Muhammad Rafique. The appellant Muhammad Iqbal filed a suit for possession of the disputed land by pre-emption and took this version that the gift-deed was in fact a sale-deed. The suit was decreed in favour of the appellant Muhammad Iqbal on 15-12-2006. After issuance of the said decree in favour of the appellant Muhammad Iqbal, the appellant Basharat Ali filed a suit for cancellation of the gift-deed and the decree issued in favour of the appellant Muhammad Iqbal. The appellant Basharat Ali did not file any application for impleading him in the suit filed by the appellant Muhammad Iqbal. Even, the said Muhammad Rafique has been pleading the suit filed by the appellant Muhammad Iqbal as attorney of Basharat Ali. The filing of the suit against the said Muhammad Rafique by the appellant Basharat Ali reflects that the said suit has been filed in connivance with Muhammad Rafique and only to counter the suit filed by the appellant Muhammad Iqbal. It was enjoined upon the appellant Basharat Ali to file an application under section 12(2) of C.P.C. But he did not file the same. The appellant Basharat Ali admits the execution of attorney in favour of the said Muhammad Rafique. Ultimately, the suit filed by the appellant Basharat Ali was rejected under Order VII Rule 11 of C.P.C. And later on the appeal filed by him was also dismissed by the learned District Judge Bhimber.
22. The learned counsel for the appellant Basharat Ali raised this objection that the suit was not decided on merits and the appellant/plaintiff was not heard. The record reveals that the appellant/plaintiff Basharat Ali was properly heard by the trial court and there was no need to decide the suit on merits as the documents placed on record were quite enough to pass an order under Order VII Rule 11 of C.P.C. The appellant/plaintiff Basharat Ali was debarred to file a suit in presence of his admission for execution of his attorney in the name of Muhammad Rafique. So, the appeal filed by the appellant Basharat Ali has no substance to accept the same. The facts of the precedents referred by the learned counsel for the appellant Muhammad Iqbal have conformity with the facts of the present case while the facts of the precedents referred by the learned counsel for the respondents Muhammad Rafique and others have no conformity with the facts of the present case.
In the light of what has been stated above, the appeal filed by the appellant Muhammad Iqbal is hereby accepted and declared that the gift-deed executed by the respondent Basharat Ali in favour of the remaining respondents was in fact a sale and the appellant/plaintiff Muhammad Iqbal has got a prior right of purchase regarding the disputed land. The judgment and decree passed by the learned District Judge Bhimber dated 13-9-2008 is hereby set-aside and the judgment and decree passed by the learned Senior Civil Judge Bhimber dated 15-12-2006 is maintained. Appeal No. 394/08 filed by the appellant Basharat Ali stands dismissed. No order as to the costs.