' MAHMOOD AHMAD BHATTI, J. --- This revision petition is directed against the judgments and decrees dated 27.04.2005 and 18.02.2006 passed by the learned Civil Judge, Pattoki and an Additional District Judge, Pattoki, District Kasur, respectively, whereby the suit of the petitioner for possession through pre-emption was dismissed and an appeal preferred thereagainst was dismissed as well.
2. Shortly stated, the facts are that the petitioner instituted a suit for possession through pre- emption, averring therein that Mst. Karam Bibi was owner in possession of land measuring 19 Kanals, 15 Marlas, situated in Mouza Balloki, Tehsil Pattoki, District Kasur. She is alleged to have sold the land described in paragraph No. 1 of the plaint to Muhammad Jamil and Abdul Hameed, the defendants/respondents for a consideration of Rs. 1,50,000/-through mutation No. 3505 dated 13.06.1998. However, the aforesaid sale transaction was disguised as an exchange. It is further maintained in the plaint that mutation No. 3512 attested on 30.06.1998 in favour of Mst. Karam Bibi reflecting the transfer of land measuring 11 Kanals, 18 Marlas, situated in the same village to her was fictitious and was a device to hoodwink the plaintiff and to prevent him from exercising his right of pre-emption in respect of land sold by Mst. Karam Bibi. In short, it is the case of the petitioner/plaintiff that exchange mutation No. 3505 attested on 13.06.1998 was in fact a sale mutation and was masquerated as an exchange mutation. The plaintiff went on to state that he learnt of the transaction in question on 24.09.1998 at 06:00 p.m. When Muhammad Anwar son of Sahib Din came over there and disclosed about the sale made in favour of the defendants. At the time, Fateh Muhammad son of Shahab Din was present at his drawing room/baithak. It is further claimed by him that he declared and then without any loss of time that he would exercise his right of pre-emption. He obtained the copies of mutation from Patwari Halqa on 25.09.1998 and sent notices of Talb-eIshhad attested by Fateh Muhammad and Muhammad Anwar, the afore- mentioned to the defendants on 26.09.1998. It is asserted by him that he has a preferential right of pre-emption vis. a vis. The defendants on account of his being shafi sharik, shafi jar and shafi khaleet, whereas the defendants lacked these qualifications and were strangers to the suit land prior to their having made a purchase through mutation No. 3505 dated 13.06.1998.
3. The defendants entered appearance and filed written statement, controverting the pleas of the plaintiff both on the factual and legal plane. It was insisted by them that mutation in question embodying the transaction between Karam Bibi and there was an exchange mutation. Since an exchange is not pre-emptible, the suit was liable to be dismissed. They also denied that the plaintiff made demands of pre-emption in terms of Section 13 of the Punjab Pre- emption Act, 1991. The claim made by the plaintiff was rubbished, and the contents of the plaint were stated to be a figment of the imagination of the plaintiff.
4. Given the divergent pleadings of the parties, the learned Trial Court framed the following issues:- -- ISSUES:-
(1) Whether the plaint is liable to be rejected U/O. VII, Rule 11, CPC? OPD
(2) Whether the suit is not maintainable in view of P.O. No. 2? OPD
(3) Whether the plaintiff has no cause of action and locus standi? OPD
(4) Whether the plaintiff is estopped by his words and conduct to file this suit? OPD
(5) Whether the plaint has insufficiently been valued for the purpose of Court-fee and jurisdiction if so, what is the correct valuation? OPD
(6) Whether the suit is not maintainable in its present form? OPD
(7) Whether the suit is false and vexatious, as such the defendants are entitled to special costs u/S. 35-A of CPC? OPD
(8) Whether the change is in fact a sale? OPP
(9) If issue No. 8 is proved whether the plaintiff has fulfilled requirements of all talabs? OPP
(10) Whether the plaintiff has superior right of preemption over the defendants, as such, he is entitled to a decree for possession through preemption? OPP
(11) Relief.
5. In order to prove his case, the petitioner/plaintiff examined as many as 9 witnesses. He examined Muhammad Siddique, Record Keeper of Post Office Balloki as P.W.1, Muhammad Nazim, Postman Balloki, Tehsil Pattoki as P.W.2, Abdul Rasheed Moakal, office Qanungo Pattoki as P.W.3, Khalid Raza, Patwari Halqa P.W.4, Abdul Majeed, stamp vendor and scribe as P.W.5, Muhammad Amin as P.W.6, Fateh Muhammad as P.W.7, Muhammad Anwar as P.W.9, while he himself appeared as P.W.B. In documentary evidence, he produced photo copies of notices of Talb-e-Ishhad as Exh.P.1 & Exh. P.2.
He also tendered copies of register Haqadaran-ezameen for the years 1991-92 and 1995-96 and mutation of exchange. All in all, he produced 18 exhibits in documentary evidence. To rebut the case set up by the plaintiff, Abdul Hameed, one of the defendants appeared as D.W.1. He also examined Abdul Sattar as D.W.2 and Safdar Ali as D.W.3. The defendants also produced copies of mutations showing the exchange of land between Karam Bibi and them as Exh. D.1 and Exh. D.2.
6. The learned Trial Court proceeded to dismiss the suit of the plaintiff/petitioner vide judgment and decree dated 27.04.2005.
7. Feeling aggrieved, the petitioner preferred an appeal, which was also dismissed by an Additional District Judge Pattoki, District Kasur vide judgment and decree dated 18.02.2006. Hence this revision petition.
8. In support of this revision petition, the learned counsel for the petitioner submits that both the impugned judgments and decrees passed by the learned Courts below suffer from the vice of misreading and non-reading of material evidence produced by the parties. It is urged by him that the findings recorded by the Courts below proceeded on conjunctures and surmises. The reasoning given in the impugned judgments was also regarded as erroneous. The application of law to the facts has been questioned by him as well. He has also challenged the findings of the Courts below regarding the non-performance of Talbs on the part of the petitioner.
9. The arguments advanced by the learned counsel for the petitioner have been refuted by the learned counsel for the respondents. It is argued by him that both the learned Courts below recorded concurrent findings against the petitioner/piaintiff, who failed to establish that the transaction sought to be pre-empted by him was a sale transaction. It is also stressed by him that the law permits the parties to adopt a device to stance off the suit for preemption. So long as such device is not held to be a disguise, the Courts of law are not supposed to pierce the veil and go behind the transaction. He concludes by making the submission that the petitioner has failed to point out any illegality or material irregularity or misreading or non-reading of evidence on the part of the learned Courts below, warranting the interference of this Court under Section 115, CPC. It is prayed by him that this petition be dismissed with costs.
10. I have heard the learned counsel for the parties and perused the record annexed to the revision petition, in addition to poring over the judgments passed by the learned Courts below.
11. The petitioner was non-suited on twofold grounds:- one, that the transaction in question was not a sale transaction. As such a suit for pre-emption was not maintainable. Two, the petitioner failed to prove the demands of pre-emption in accordance with the law. Talb-eIshhad was held not to have been made within the time stipulated in Section 13 of the Punjab Pre-emption Act, 1991.
Astonishingly, the learned counsel for the petitioner did not advance any arguments as to how the findings recorded by the learned Courts below regarding nonperformance of Talbs were perverse or contrary to the record. However, I am not in agreement with the finding of the learned Appellate Court regarding Talb-e-ishhad. It was wrongly held by it that Talb-e-ishhad was to be made within two weeks of the attestation of the mutation in question. Probably, the learned Appellate Court did not acquaint itself with the provisions of Section 13 of the Punjab Pre-emption Act, 1991 before making such a sweeping statement. The period of two weeks is to commence from the alleged date of knowledge of the transaction of sale and not from the date of the attestation of mutation or the execution of a sale-deed. The finding of the learned Appellate Court to that extent cannot be upheld.
12. In an effort to show that mutation No. 3505, dated 13.06.1998 was a sale transaction and cloaked as an exchange, the petitioner/plaintiff examined Abdul Majeed, Stamp Vendor as P.W.S. In his statement, he produced an attested copy of an excerpt from his Stamp Vendor Register, which was stated to have been deposited with DCO Office, Kasur. He also produced Exh. P.10, a copy of the agreement to sell, which allegedly made a part of his Register Waseeqa Naveesi. It was stated by him that Mst. Karam Bibi had come to him, who purchased a Stamp paper for scribing an agreement to sell. At her instance, he also scribed Exh.P.10, which was an agreement to sell between Karam Bibi and Muhammad Wakeel, Muhammad Jameel, Muhammad Rasheed, Muhammad Saeed, Abdul Habib and Abdul Qayyum sons of Choudhary Muhammad Akbar. It is pertinent to mention that Muhammad Jameel and Abdul Majeed, the afore-mentioned are the respondents/defendants. However, it was admitted by him during the cross-examination that Exh.
P.10 did not bear the signatures of Muhammad Jameel and Abdul Majeed. He added that only one of the vendees had put his signature to Exh. P.10. He went on to admit that he did not know the defendants personally nor could he identify them.
13. Apart from the statement of the scribe-cum-vendor of Exh. P.10, the plaintiff did not examine any marginal witness to Exh. P.10. Allegedly, Exh. P.10 was attested by Zulfiqar Ali and Ghous Muhammad.
It goes without saying that this document remained unproved, in the light of the law laid down by the Hon'ble Supreme Court of Pakistan in the cases reported' as Farid Bakhsh v. Jind Wadda and others' (2015 SCMR 1044), Farzand Ali and another v. Khuda Bakhsh and others' (PLD 2015 Supreme Court 187), `Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others' (PLD 2011 Supreme Court 241), Rafaqat Ali and others v. Mst. Jamshed Bibi and others' (2007 SCMR 1076), Rafaqat Ali v. Muhammad Farid and others' (2007 SCMR 1083), `Mst. Rasheeda Begum and others v.
Muhammad Yousaf and others' (2002 SCMR 1089), 'Muhammad Nazir and 2 others v. Mst. Wazir Begum' (1999 SCMR 2594), 'Abdul Khaliq v. Muhammad Asghar Khan and 2 others' (1996 Lahore 367
(DB) and 'City Education Board (registered) Sialkot through Director v. Mst. Maqbool Nasreen' (PLD 2008 Lahore 51). That is why both the learned Courts below did not attach any importance to Exh.
P.10 and declined to buy the argument that this document bore witness to the actual transaction having taken place between the alleged vendor, Karam Bibi and the defendants/respondents.
14. True, an exchange transaction is not pre-emptible, but the contention of the learned counsel for the respondents that the Courts have got no authority to determine the true character of a transaction is not well-founded. In the case reported as 'Muhammad Aslam and others v.
Muhammad Hayat' (1999 SCMR 1346), this controversy was resolved once and for all in the following words:--- "We have, however, not been impressed by the contention of the learned counsel for the petitioners. Merely because there is no provision in the Punjab Pre-emption Act (IX of 1991) empowering the Civil Court to declare a transaction as a sale which is ostensibly one of exchange, it is not debarred to determine the true nature of a transaction."
15. There is merit in the arguments made by the learned counsel for the respondents that the onus lay on the petitioner/plaintiff to prove that the transaction in question was a sale and not an exchange. This has been held by the Hon'ble Supreme Court of Pakistan in the case reported as Elahi Bakhsh through Legal Heirs and others v. Muhammad lqbal and another' (2014 SCMR 1217).
Again, it is well-established law that the parties to a transaction might adopt a device to ward off the suit for pre-emption. In this respect, reference may well be made to the judgments reported as `Ch. Ghulam Ahmad Khan v. Diwan Sheikh Ghulam QutabUd-Din and another' (PLD 1960 W.P. Lahore 461), Ahmad Yar and another v. Muhammad As/am' (1981 CLC 527) and `Mst. Miraj Bibi v. Mst. Azim Khatoon and others' (1997 SCMR 1892). At the same time, a distinction was made between a device and disguise. A sale transaction disguised as an exchange is not immune from being challenged as a sale and it would be pre-emptible. But in order to prove that the transaction in question was a sale, the pre-emptor would have to adduce cogent, convincing, incontrovertible and unassailable evidence. In this behalf it would be advantageous to reproduce an excerpt from the judgment reported as `Ghulam Hussain through Legal Heirs v. Mst. Miraj Bibi' (1995 MLD 435), which reads as under:- ' It need not be gainsaid that a transaction has to be taken on its face value unless it is shown by some cogent evidencq that the nature of transaction was in fact not what was recorded in the document. The evidence produced by the preemptor/respondent on the subject is highly deficient to establish that the impugned transaction was an exchange and not a sale.'
16. The distinction between sale and exchange has also been highlighted in the judgments reported as 'Ali Muhammad v. Malik Sanwal and others' (PLD 1961 Peshawar 62) and 'Muhammad Taj v. All Akhtar' (2012 CLC 853). The preponderant view is that if there is no proof of the making of payment to the vendor, the transaction cannot be held as a sale. Be that as it may, the distinction drawn by the Courts rest on the wording of the provisions contained in Sections 54 and 118 of the Transfer of the Property Act, 1882, defining a sale and exchange as under:--- "Sale defined". "Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
"Exchange" defined---When two persons mutually transfer the ownership of one thing for ownership of another, neither thing or both things being money only, the transaction is called an exchange.
17. Of late, a nation is taking hold in some circles that the significant difference between the areas of land to be exchanged between the parties and the differential in the value of one land to be exchanged with the other are the crucial factors to determine as to whether the particular transaction is a sale or an exchange. But no importance was attached to these difference in the judgment reported as `Sher Azam v. Fazle Azim Shah' (1972 SCMR 649). The relevant paragraph therefrom is reproduced for ready reference.
"The Courts below have rightly observed that for a transaction to be a sale it is necessary that price in cash must have been paid for the thing sold, and that there must be transfer of ownership on the one side and cash price for it on the other. In the present case, Courts below were not satisfied that price in cash was paid, and from the mere fact that possession of both the properties remained with the respondent or that the areas and the qualiies of the properties said to be exchanged were unequal, no irresistible inference of sale could be drawn."
18. The latest judgment of the Supreme Court of Pakistan reported as Elahi Bakhsh through Legal Heirs and others v. Muhammad lqbal and another' (2014 SCMR 1217) is illuminating and worth reproducing.
"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 his stance, he produced Saeed Ahmed and Mst. Sughran Bibi who were examined as P. W.1 and P.W2. Both the P.Ws. 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 vary its terms could be admitted into evidence? The answer to this question is a plumb no because Article 103 of Qanun-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 P.W.1 and P.W.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."
19. In view of the discussion made above, the petitioner has not been able to show any illegality or material irregularity to have been committed by the learned Courts below. The misreading and non-reading of evidence on their part has not been pointed out either. Both the impugned judgments were passed in accordance with the law and call for no interference under Section 115.
This revision petition being devoid of merits is hereby dismissed with no order as to costs. Civil revision .