1. MUHAMMAD HALEEM, ACTG. C. J.-This appeal, by special leave, arises from the judgment of the Lahore High Court, Lahore, dated 13th of April 1976, by which L. P. A. No. 243 of 1970 was dismissed.
2. The facts giving rise to this appeal are that two mutations, bearing Nos. 191 (Exh. P/4) and 192 (Exh.
3. P./2) were entered in the mutations' register of Mauza Ghuman, District Jhelum, on 21st of February 1957, and both were sanctioned by the Revenue Officer in the presence of the parties on 27th of March, 1957. The former related to the transfer of 17 kanals and 6 marlas of land by Dadu in favour of Shah Wali for a sale consideration of Rs. 6,000, inclusive of Rs. 11,00 due as mortgage money on the land sold. The latter related to the sale of 9 kanals and 5 marlas of land by Shah Wali in favour of Dadu for a sale consideration of Rs. 4,500. Two rival pre-emption suits were filed for pre-emption of the land sold by Dadu to Shah Wali as per Mutation No. 191 by Allah Rakba and Manzoor Hussain.
4. Shah Wali, the vendee, pleaded that the transaction of sale was in effect, an exchange having regard to the other mutation sanctioned on the same date which showed the sale of his land to Dadu. The trial Court, amongst others, framed an issue in regard to the nature of the transaction and held that the transaction sought to be pre-empted was out and out a sale and not an exchange. In holding so, it relied on the report of the Patwari and the endorsement of the Revenue Officer who sanctioned both the mutations on the sate case.
5. As for the mention of the word "Tabadela" in Column No. 13 of the rele--vant register, the trial Court was of the opinion that it was added at the behest of one of the parties and if it had been genuine then the transaction would have been mentioned as an "exchange or partly sale or partly exchange". The trial Court further found that Allah Rakha did not have the superior right of pre- emption than the vendee and, therefore, it dismissed his suit while it decreed the suit of Manzoor Hussain, the rival pre-emptor ; but as he failed to deposit the amount, he faced from the picture.
6. Allah Rakha, however, filed an appeal against this judgment of the trial Court dated 27th of June, 1960, and succeeded as the District Judge, Jhelum, held, while confirming the finding of the trial Court, that Allah Rakha was a collateral of Dadu and bad a superior right of pre-emption viz-a-viz Shah Wali and allowed his appeal by judgment dated 16th of December, 1960, Shah Wali next filed the Second Appeal but did not succeed as a learned Single Judge in the High Court held . . . . The contents of these two documents (Exhe. P. 2 and P. 4) read with the written statement filed in the trial Court by the appellant and his statement as D. W. `5 (as his own witness are clearenough to establish the contrary. Gul Muhammad Khan v. Khan Ahmad Shah 29 P R 893 is in point. Ii, therefore, hold in agreementwith the two Courts below that it is a case of sale and not an exchange,"
7. The leaned Single Judge, however, granted a certificate and, accordingly, the Letters Patent Bench re-examined the legal effect of the two transactions; and as it was a case in which the entire consideration was paid in cash, it held that the admission of Shah Wali was sufficient to repel the assumption of his counsel that the two transactions, if taken together, manifestly show that they had, in substance, exchanged their lands and therefore, the trans--action in question was not a sale. The Letters Patent Bench further held that there was no evidence to show that they were contemporaneously made as they were oral and later evidenced by mutations which did not provide any data to indicate the time when each transaction was completed. Therefore, it left room for doubt that they had been "completed at different times, in which case the consideration may have been paid in terms of money".
8. Having thus failed at that stage too, . Shah Wali sought leave to appeal from this Court which was granted to examine the same question.
9. Adverting now to the question posed for consideration as to the nature of the transaction it will be seen that the counsel for the appellant rested his submission in the trial Court for the transactions to be treated as an exchange on the basis that the price of land was Rs. 58 per marla and, therefore, the market value of the suit land was Rs.` 19,000 whereas the price of the land purchased by Dadu from Shah Wall was at this rate, Rs. 10,000 ; and as the balance of Rs. 9,000 was adjusted by paying Rs. 6,000 as price of 8 kanals of land which Shah Wali of in excess of the area that he gave to Dadu, the transaction was an exchange. This plea was repelled on the short ground that the price of the Land, according to its nature, as determined by the Local 'Commissioner, was not the one as urged but less than that and, therefore, it was more or less the same at which the suit land was sold. This plea was also raised in appeal before the Additional District Judge, a learned Single Judge in the.. High Court and the Letters Patent trench, but it was repelled. The Letters Patent Bench held that there was no evidence to show that the two transactions were contem-- poraneously completed and, therefore, they could not be taken together and each had to be considered separately in which cash was the consideration.
10. Indeed it is the nature of the consideration paid for the transfer which determines the nature of the transfer itself. If the consideration for the transfer is not paid in cash but is paid by transfer of the ownership of some property, it would be only an exchange and not a sale. Further, each party to an exchange has the rights. And is subject to the liabilities of a seller as to that which he gives, and has the rights and is subject to the liabilities of the buyer as to that which he takes. The :intrinsic evidence in this case is the statement of Shah Wali himself which destroys this argument. Further, the report of the Patwari and the endorsement of the Revenue Officer which are based on this admission rebut this submission. In the extracts of the mutations his statement is also recorded which shows that the transaction was out and out a sale. Here I may point out that in on of the two extracts of the same mutation register, the word "Tabadela"scored off as it was redundant in the context of the statement of Dadu, the report of the Patwari and the endorsement of the Revenue Officer.
11. As according to the definition of the word "exchange", its essential requirements are not patent from the record and all that we find is that each transaction represents a sale of which the consideration is cash and not some property, therefore, it is impossible to infer as was contended by the Advo--cate-on-Record, then it was an exchange merely from the content omit submission as to the price of the land, which was not established and the adjustment of the excess land which too had no factual foundation. Accordingly, the judgment of the Letters Patent Bench is unexceptional able.
12. This appeal, therefore, has no substance and is dismissed with costs.