This civil revision is directed against the judgments and decrees dated 01.06.2012 and 08.01.2013, passed by learned trial Court and appellate Court, respectively , whereby suit for possession through pre-emption filed by the petitioner was dismissed and the appeal, also met the same fate.
2. Relevant facts are that petitioner filed suit for possession through pre-emption against respondents contending that respondents No.9 to 11 were owners of the suit property , measuring 24 kanal (detail of which is given in caption of the plaint), and transferred it to respondents No.1 to 8 through Mutation No.2263 dated 16.01.2004 at the sale price of Rs.2,10,000/-. The plea of the petitioner was that in order to defeat rights of pre-emption, the transaction of sale was shown as an exchange transaction. The suit filed by the petitioner was dismissed by the learned trial Court and appeal was also dismissed by the learned appellate Court, hence this revision petition.
3. Learned counsel for the petitioner submits that the transaction-in-question was a sale transaction and not exchange transaction, therefore, the pre-emption suit was maintainable and further the requirements of 'Talbs' were also fulfilled, hence impugned judgments and decrees are not sustainable.
4. Argument heard. Under section 5 of The Punjab Pre-emption Act 1991 ("Act") , the right of pre-emption arise only in case of sale of immovable property , as defined under section 2(d) of the Act. However , under section 2(d)(iii) of the Act, "the exchange of agricultural land", is not included in the definition of "sale". Therefore, indeed in respect of exchange transaction, the pre-emption suit is not maintainable. In this regard reliance is also placed on Muhammad Taj. Vs. Ali Akhtar (2012 CLC 853), Muhammad Hayat. Vs. Sikandar Abbas (2007 CLC 961) and Muhammad Anwar . Vs. Bashir Ahmad and another ( 2014 CLC 1819 ).
5. In view of above legal position, the moot issue involved in this case is that whether the transaction of suit property was a sale transaction or land was transferred through exchange to defeat the right of pre-emption. The burden to prove that transaction in question was a sale and not exchange was on the petitioner/plaintif f. Though the petitioner while appearing as PW-2, reiterated the averments of the plaint and claimed that property was transferred by way of sale. However , during cross examination, he stated that he does not know whether any land measuring 23-kanal was transferred by respondents No.1 to 8 in favour of respondents No.9 to 11 in exchange of 24-kanal land. He also showed ignorance to the fact that whether any payment was made against suit property or where and when such payment was made. The petitioner has also not produced any witness, in whose presence, the sale price was paid by respondents No.1 to 8 to respondents No.9 to 11. The documentary evidence, on the other hand, shows that it was an exchange transaction and not a sale transaction.
6. It is settled law that the intention of the parties is to be gathered from the contents of the documents and the ostensible exchange transaction should not be dis-believed unless it is established positively that the same was in fact a sale transaction. Though, it was contended by the petitioner/plaintif f that where value and the area of exchange property are disproportionate, it should be assumed that the transaction has been given a colour of an exchange to defeat the right of pre-emption. However , to controvert the ostensible nature of transaction of an exchange and to prove it as a sale, the petitioner/plaintif f was required to lead some evidence to show as to when the parties to the exchange agreed for the sale, but with an object to circumvent the right of the petitioner have diverted the transaction as exchange. However , the evidence led by the petitioner is vague and sketchy . There is no proof of the date, the day, the time, the place and nature of negotiations between respondents No.1 to 8 and 9 to 11 regarding the sale. There is also no witness produced in whose presence, the price was settled or paid by the respondents. The entire evidence is hearsay evidence and not suf ficient to prove the transaction of sale.
7. There is another aspect of the matter that under section 13(2) of the Act, when the fact of sale comes within the knowledge of pre-emptor through any source, he can exercise his right of pre-emption by making talab-e- muwathibat. The word 'Sale' has been defined under section 2 (d) of the Act, which does not include exchange of agricultural land. Once it is established that at the time of institution of the suit, the vendees by way of exchange mutation No.2263 dated 16.01.2004, diverted the rights in the property , it could not be said that petitioner/plaintif f fulfilled even the requirements of 'T albs' under section 13 (2) of the Act.
8. The Honourable Supreme Court in Muhammad Feroze and others. Vs. Muhammad Jamaat Ali (2006 SCMR 1304 ) and Abdul Mateen and others. Vs. Mst. Mustakhia (2006 SCMR 50), held that concurrent findings on question of fact and mixed question of law and fact cannot be interfered, unless it is found suffered from misreading or non-reading of evidence or based on no evidence or inadmissible evidence, but in absence of any such defect in the concurrent findings of two courts, the interference of High Court in Civil Revision would amount to improper exercise of Revisional jurisdiction.
9. In view of above discussion, the instant petition being meritless is dismissed . No order as to costs.