SARDAR MUHAMMAD EJAZ KHAN, J.---The captioned appeal has been directed against the judgment and decree passed by the learned District Judge, Bhimber, on 14.10.2018 whereby the judgment and decree of the learned Senior Civil Judge, Bhimber, dated 28.02.2007 was maintained.
2. Synthesized facts culminating into the present appeal are that the plaintiff-appellant, herein, filed a suit for possession on the basis of right of prior purchase and cancellation of gift-deed dated 16.08.2002 pertaining to land Khewat No.115/112, Khata No.823, Khewat No.116/113, Khata Nos.824, 825, Khewat No.117/108, Khata Nos.826 to 831, Khewat No.121/114 Khata. Nos.838, 839, Khewat No.120/111 Khata Nos.836, 837, Khewat No.130/124, Khata No.911, Khewat No.134/127 Khata Nos.955 to 986 measuring 06 Kanal 17 Marlas 06 Sarsai situated in Mozia Pindi Tehsil Bhimber, in the Court of learned Senior Civil Judge Bhimber against the defendants-respondents, herein, on 05.09.2002 and thereafter due to further transaction through gift-deed dated 23.10.2002, the plaintiff-appellant with the permission of the Court filed an amended plaint on 10.01.2004 by-way of challenging gift- deed dated 23.10.2002 and mutation No.382. It has been contended therein that defendants- respondents Nos.1 to 4 transferred the aforesaid land through attorney in favour of defendants- respondents Nos.5 and 6 in lieu of Rs.5,00,000/- whereas in fact the land was not transferred through gift-deed rather the same was transferred through sale-deed just to defeat the right of prior purchase of the plaintiff-appellant. It has been contended therein that donors and plaintiff- appellant are co-sharer in the suit property while the defendants-respondents Nos.5 and 6 have no nexus with the suit land, hence, vis-a-vis to the defendants-respondents Nos.5 and 6 the plaintiff-appellant has superior right of prior purchase. On filing of suit, the defendants were summoned who appeared before the Court and filed written statement on 08.01.2003 wherein stand taken by the plaintiff-appellant in the suit was refuted in toto. The learned trial Court in the light of pleadings of the framed issues and the parties were directed to produce their respective evidence. After recording evidence and hearing the parties, the learned trial Court dismissed the suit vide judgment and decree dated 28.02.2007. Feeling aggrieved from the said judgment and decree, the plaintiff-appellant, herein, filed an appeal before the learned District Judge, Bhimber, which too after hearing was dismissed vide impugned judgment and decree dated 14.10.2008 against which an appeal before this Court was preferred by the plaintiff-appellant on 09.01.2009 which was dismissed vide judgment and decree dated 07.06.2011. Against the aforesaid order PLA.was filed before the apex Court on 05.08.2011 to which the case was remanded to this Court for deciding the same afresh after hearing the learned counsel for the parties vide judgment dated 29.06.2012 hence, this appeal.
3. The learned counsel for appellant in written arguments reiterated the grounds of appeal and contended therein that the aforesaid land was actually transferred through sale-deed instead of gift-deed in lieu of Rs.5,00,000/-. It has been averred therein that the appellant in the disputed land is co-sharer and has prior right of purchase vis-a-vis to the defendants-respondents (donors) because there is no blood relation between the donors and donees and no such evidence has been brought on record to which it can be assumed that how and why the aforesaid land was gifted in response to under what kind of services. It has been pleaded therein that the evidence produced by the appellant before the trial Court fully substantiates that in fact it was a sale-deed executed in lieu of Rs.5,00,000/- instead of gift-deed but the learned trial Court as well as 1st Appellate Court fell in grave error while appreciating the evidence of the appellant in true perspective, hence, the element of gift-deed does not establish through any angle. It has been craved therein that both the Courts below committed gross irregularity and also misread and non- read of the evidence of the appellant. It has been emphasized therein that both the learned Courts below miserably failed to attend the real controversy between the parties, hence, the judgment and decrees of the learned Courts below have been recorded on surmises and conjunctures which may be set-aside to meet the ends of justice while accepting the appeal.
4. Conversely, the learned counsel for respondents, in written arguments zealously stated that no misreading or non-reading of evidence has been committed by both' the learned Courts below while passing the impugned judgments and decrees. The learned counsel maintained therein that appellant has failed to prove his version before the Courts below and now has filed the instant appeal before this Court just to prolong the matter. The learned counsel defended the impugned judgments and decrees of the learned Courts below on all counts and craved for dismissal of appeal.
5. I have perused the written arguments filed by the parties and gone through the record of case with utmost care.
6. Having perused the record, it transpires that plaintiff-appellant filed a suit for possession on the basis of right of prior purchase on the ground that gift-deed dated 16.08.2002 (Exh. "PA') was in fact a sale-deed and transaction was made in shape of gift only to defeat the right of prior purchase of the plaintiff-appellant before trial Court against defendants-respondents upon which written statement was filed on 08.01.2003 and thereafter with the permission of the Court an amended plaint was filed on 10.01.2004. From pleadings of the parties it transpires that in response to earlier suit the defendants-respondents filed written statement on 08.01.2003 whereas against the amended suit filed 10.01.2004, the learned counsel for the defendants-respondents also placed reliance on written statement filed on 08.01.2003 and did not file amended written statement.
7. The pivotal point which needs to be determined is as to whether the transfer of the disputed land (Exh. "PA") made is in fact sale or gift? For proper appreciation of the matter, section 4 of The Azad Jammu and Kashmir Right of Prior Purchase Act, 1993 is reproduced for ready reference as under:- "4. Right of prior purchase, application of.- The right of prior purchase shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons and it arises in respect of such land only in case of sales, and in respect of such property only in case of sales or of foreclosures of the right to redeem such property.
Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale."
8. A plain reading of the above referred section of the Act, supra, reveals that the Court is fully competent to declare an alienation/purporting to be other than a sale as in fact a sale: To draw an inference whether the instant case the transaction is in fact a sale or not? To resolve this question, the definition of gift, as defined in section 122 of Transfer of Property Act, 1882, is reproduced as under:-
122. "Gift" defined. "Gift" is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person called the donor, to another called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving."
9. A bare reading of the above-quoted provisions of law transpires that movable or immovable property is gifted voluntarily and without consideration, hence, it is relevant to reproduce the sale as has been defined in section 54 of the Transfer of Property Act, 1882. For proper perception of law, section 54 of the Act, supra, is reproduced as under:- "54. "Sale Defined," "Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised."
10. Combined study of sections 122 and 54 of The Transfer of Property Act, 1882, it elucidates that the main distinction between 'sale' and 'gift' is that in case of sale the consideration and exchange of money is an essential element whereas in case of gift there is no element of consideration of amount but is executed voluntarily.
11. Touching to the branches, first of all, it is relevant to go throw the roots of the case which needs to be determined to appreciate the evidence of the parties so apparent on the face of record. The plaintiff-appellant in support of his claim produced witnesses Faiz Alam, Altaf Hussain and he also entered into witness box and got recorded his statement while documentary evidence Exh. "PA" i.e. a certified copy of gift-deed dated 16.08.2002, Exh."PB" i.e. a certified copy of gift-deed dated 23.10.2002, Exh. "PC" and Exh. "PD" i.e. certified copies of revenue record, Exh. "PE" i.e. a certified copy of statement recorded by Mst. Shamim Akhtar before Tehsil Court of Criminal Jurisdiction, Bhimber, on 16.07.2003. On the other hand, defendants-respondents in support of their claim produced witnesses Muhammad Ydusaf, Muhammad Khalil Chaudhary, Rehmat Ali and defendants- respondents namely Ghulam Nabi, Muhammad Ashraf and Muhammad Ramzan entered into witness box and got recorded their statements and also produced documentary evidence Exh.
"DA" i.e. a certified copy of gift-deed dated 16.08.2002, Exh. "DB" i.e. a certified copy of Misal-e- Haqeet pertaining to year 1994-95, Exh. "DC" i.e. a certified copy of power of attorney dated 12.08.2002, Exhs. "DD" and "DE" i.e. certified copies of revenue record.
12. From deep scrutiny of evidence of the plaintiff-appellant it transpires that witnesses Faiz Alam and Altaf Hussain unanimously deposed in their statements that when both the parties entered into agreement where eight other persons were present and the consideration amount was paid by Reham Dad to Muhammad Yousaf, defendant-respondent No.1 which amount consists of five bundles of thousand rupees. They further deposed that date, time and place where the consideration amount was paid are stated to be same. These two witnesses fully substantiated this fact that consideration amount of Rs.5,00,000/- was paid in their presence. It further reflects from the statement of witness Altaf Hussain that the parties have mutually agreed for transaction of the disputed land and in this regard it has been agreed that power of attorney was affirmed to be given to Reham Dad while this statement also fortifies from the statement of witness Faiz Alam who also deposed the same words with regard to giving power of attorney to Reham Dad. It is relevant to mention here that during the: cross-examination a suggestion was given by the learned counsel for the defendants-respondents, who himself used word ( Icy ). In response thereof, witness, Altaf Hussain, in cross-examination deposed the following words:- {{URDU TEXT}}
13. It is crystal clear from the evidence that the parties had have mutual understanding for transfer of the land behind gift-deed. For completion of the said transaction it was affirmed that power of attorney was agreed to be given to Reham Dad and for that very purpose power of attorney was executed in favour of Reham Dad by principals namely Muhammad Yousaf, Ghulam Nabi and Muhammad Nawaz (donors) on 12.08.2002 and on the basis of said power of attorney after three days, attorney and respondent No.4 executed gift-deed in favour of predecessor-in-interest of respondents Nos.5 to 10 and respondent No.11 (donees) on 16.08.2002. It transpires that plaintiff- appellant according to the revenue record is co-sharer in the disputed land with the defendants- respondents Nos. 1 to 4 (donors) but the (donees) have no blood relation with the donors and it has not been brought on record that under what circumstances the aforesaid land was gifted, even the donors and (donees) have no cordial relation, hence, the element of gift-deed does not substantiate from the evidence of the defendants-respondents (donors/donees) because no single word in the guise of execution of gift-deed has been brought on the surface of record to which it can be assumed that in fact, the aforesaid land was gifted rather the social status of the donors is very low as compared to the donees. Ghulam Nabi vendor in his statement deposed that after the execution of gift-deed, the marriage of his daughters was solemnized.
14. The important aspect of the instant case is that when the land in dispute was gifted by respondents Nos.1 to 3 (donors) through attorney Reham Dad in favour of predecessor-in-interest of respondents Nos.5 to 10 and respondent No.11 (donees) through gift-deed dated 16.08.2002 in which share of donors namely Muhammad Yousaf, Ghulam Nabi and Muhammad Nawaz is 05 Kanal 01 Marla 08 Sarsai, who are real brothers whereas share of donor No.4 namely Rehmat is 01 Kanal 15 Marlas 07 Sarsai. Both Fazal Dad, predecessor-in-interest of respondents Nos.5 to 10 and respondent No.11, Haq Nawaz (donees) after near about two months transferred the said land through another gift-deed dated 23.10.2002 through which predecessor-in-interest of respondents Nos.5 to 10 gifted land measuring 3-1/2 Kanal in favour of his sons namely Muhammad Ashraf, Muhammad Aslam and Muhammad Akram, (respondents Nos.7 to 9) whereas Haq Nawaz gifted land measuring 3-1/2 Kanal in favour of his real brother namely Muhammad Nawaz (respondent No.12). This fact is alone sufficient to hold that in fact respondents Nos.1 to 4, after receiving consideration amount executed power of attorney in favour of Reham Dad.
15. It is evident from the record that relation between two persons can be said to be cordial based upon love, affection and mutual understanding but it cannot be said that these relations may be based upon the aforesaid elements among respondents Nos.1 to 3 (donors) and predecessor-in- interest ' of respondents Nos.5 to 10 and respondent No.11 (donees) while the fact remains that respondent No.4, Rehmat Ali, (vendor) has no nexus with other donors, who also gifted the said land in the name of different persons namely Fazal Dad son of Noor Alam and Haq Nawaz. son of Reham Dad (donees). From the recital of this gift-deed it does not establish under what circumstances and services the aforesaid land was transferred through gift-deed, hence, the necessary ingredients for execution of gift-deed are lacking in the instant case. Thus, the element of love and affection appears to have not been found. My this view find support from a case titled Mukhtar Ahmed v. Muhammad Ameen (deceased) through LeRal Heirs and 8 others (2017 M LD 845] wherein it has been opined as under:- "On this proposition, the Hon'ble Supreme Court of Pakistan has already ruled, that the love and affection, In case of making a gift cannot be conveyed or expressed through any other person including the attorney. The sentiments of love and affection must be established on satisfactory and unimpeachable evidence."
16. It is relevant to mention here that social status of the donees is dominant position vis--vis to the donors and how they transferred the disputed land without any consideration rather the donees have no blood relation with the donors and no cordial relation appears to have been brought on record to which the land in dispute was gifted. Even it does not substantiate from the statement of donors that they have any relation of love and affection and they have also not mentioned in their ostensible gift-deed that why they are executing the said deed.
17. It is pertinent to mention here that both the learned Courts below fell in grave error while appreciating the evidence of the parties and reached at wrong conclusion, hence, it was enjoined upon- the Courts below to determine the question of facts according to the respective pleadings and evidence of the paries so brought on the file but they failed to do so. In this guise, according to my best consciousness I am fully satisfied that the evidence produced by the plaintiff-appellant wholly substantiates his claim on the proposition that gift-deed executed on 16.08.2002 is in fact sale-deed executed in lieu of Rs.5,00,000/-. My this opinion fortifies from a case titled Muhammad Bashir v. Mirza and others [1987 SCM R 1277] wherein it has been opined as under:- "From the careful perusal of the statements of the witnesses it has become quite clear that Mst.
Fatima had in fact sold the lands to Muhammad Bashir appellant but in order to frustrate the right of the respondent the transactions were given the colour of gift. The record also shows that the appellant is not related to Mst. Fatima, he belongs to a different village and tehsil and there is also nothing on the record that Mst. Fatima, was, in any way, so obliged to the appellant that she would give him by gift such a valuable property. The fact that Mst. Fatima had adopted the appellant as a son has also not been established. The view that we take in the matter is that these appeals have no force and are dismissed with costs."
Reliance can be placed in a case titled Muhammad Hussain and others v. Miran Bakhsh and others [1989 SCM R 1064].
18. It is worthwhile to mention here that although concurrent findings of facts cannot be disturbed in second appeal yet the same can be interfered with particularly when the trial Court as well as 1st Appellate Court failed to appreciate the evidence according to the relevant provisions of law. It is pertinent to mention here that concurrent findings of facts are open to attack, if the same are not supported by any evidence, hence, citations referred to and relied upon by the learned counsel for the respondents are not helpful in the case in hand. My this view find supports from a case titled Muhammad Riaz v. Muhammad Riyasat and 8 others [2008 SCR 308] wherein it has been observed as under:- "I do not entertain any second view on the point that the concurrent findings of facts are open to attack and can be recalled by this Court if the same are not supported by any evidence or otherwise are unreasonable or perverse. Application of law, however, has to be made keeping in view the facts of each case."
Identical proposition has been resolved by the Hon'ble Supreme Court of Pakistan in a case titled Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others [2019 SCM R 524] wherein it has been opined as under:- "The Courts cannot shut their eyes where the lower fora have clearly misread the evidence and came to hasty and illegal conclusions. We have repeatedly observed that if findings of fact arrived by Courts below are found to be based upon misreading, non-reading or misinterpretation .of the evidence on record, the High Court can in second appeal reappraise the evidence and disturb the findings which are based on an incorrect interpretation of the relevant law."
19. The crux of the foregoing reasons is that the instant appeal is accepted and the impugned judgments and decrees dated 28.02.2007 and 14.10.2008 respectively passed by the learned Courts below as well as gift-deed dated 23.10.2002 along with entries in revenue record are hereby set- aside. The gift-deed dated 16.08.2002 is declared as sale-deed and the decree of pre-emption subject to payment of Rs.5,00,000/- along with the expenses is hereby awarded in favour of plaintiff-appellant in respect of suit land . The remaining consideration amount shall be paid within one month along with expenses before the trial Court from the date of announcement of the judgment, failing which, the suit would be deemed to have been dismissed.