' Civil revision is by the plaintiffs Fateh Muhammad etc. From dismissal of the suit and appeal therefrom by the Courts below. It arises out of a pre-emption case. Muhammad Hanif son of Ibrahim gifted 3/4 share of land comprised in Khasra No, lo/20/1 measuring 2 Kanals to Abdul Hamid and Abdul Majid sons of Umer Din respondents, through Mutation No, 797, entered on 8-12- 1980 and attested on 11-12-1980. Plaintiffs sued to pre-empt the afore noted disposition of property They claimed to have a superior right of pre-emption on the ground of their being owners of the estate. Plaintiffs in their plaint-alleged teat although the transaction was given the appearance of a gift, it was in fact an out and out sale. Before the attestation of gift mutation, respondents had also purchased property from other owners. Reference to them in the context is necessary. First sale was made on 29-7-1979 whereby land measuring 144 Kanats 8 Marlas was purchased by them for Rs, 5,40,000 from Herat Hussain etc. Through a second sale dated 17-3-1980 they purchased ,and measuring 7 Kanals 13 Marlas for Rs, 30,000 from Zubair etc. Yet trough another sale, dated 26-7-1980, land measuring 2 Kanals was purchased by them for Rs, ,000 from Muhammad Siddiq, real brother of Muhammad Hanif, donor. All the sales were pre-empted by the plaintiffs in suits instituted on 28.7-1980, 1-9-1980 and 3-9-1980 respectively. However, the stage of the proceedings in the afore noted civil suits and the Court where those are pending is not known.
Donees/defendants resisted the pre-emption claim. Defence pleas were that the transaction was a gift and that the plaintiffs were not possessed of superior right of pre emption. It was further pleaded that the suit was barred by time ; that the transfer of land was not pre-emptible ; that the defendants were entitled to special costs. On merits, it was pleaded that Muhammad Hanif had orally gifted the land in the month of April, 1979 and had also delivered possession to the donees. In defence, it was also alleged that the donor had made several applications to the Deputy Commissioner, Multan to have oral gift implemented in revenue records as the village Patwari was standing in his way. Pleadings gave rise to the following issues :
(1) Whether the transaction in dispute is in fact sale ? 0. P. P.
(2) Whether the plaintiffs have superior right of pre-emption against the defendants ? 0. P. P.
(3) What was the sale price of the suit land at the time of sale ? 0. P. Ps.
(4) Whether the suit is bad for non-joinder of necessary parties ? O. P. D.
(5) Whether the suit is time-barred ? 0. P. D.
(6) Whether the defendant is entitled to special costs under section 35-A, C. P. C. ? 0. P. D.
(7) Whether the instant suit contravenes the Islamic law, if so, its effect ? 0. P. D.
(8) Relief.
2. Trial Court held that the transfer was in fact a gift and not sale. As to the plaintiffs' right of pre- emption, the Court observed that they were not owners of the estate as they did not own land assessed to land revenue in the relevant estate where the suit property was situate. As regards issue No, 3, it was found that market value of the suit land was Rs, 6,000. Issues Nos. 4, 6 and 7 were answered against the defendants. No finding was recorded on issue No,
5. In result, suit was dismissed on 5th day of November, 1984. Plaintiffs appealed in the Court of Additional District Judge, Multan who declined to interfere with the findings of the trial Court and thus affirmed the judgment. The Court of appeal also found that the suit instituted was within limitation and issue No, 5, therefore, was decided against the defendants/respondents. Plaintiffs have come up in appeal to this Court from the dismissal of their appeal by Additional District Judge, Multan. Ch. M. A. Latif Amritsari has vehemently questioned the findings of the Courts below recorded on issue No,
1. He argued that the aforesaid finding that the transaction was in fact a gift and not sale, was incorrect in relation to the evidence brought on record. He referred to the evidence and urged; that Muhammad Hanif was not related to Abdul Majid etc. The alleged donees ; that there was no convincing evidence on record to prove that services were rendered by donees to the alleged donor ; that Muhammad Hanif was not a person of superfluous wealth and was also not affluent to have donated small piece of land, his only mainstay ; that Muhammad Hanif had a large family including brother and sister and there was no earthly reason available for him to make this gratuitous transfer to persons who are total strangers to him, Muhammad Siddiq his real brother, owner of the other half of the joint land had sold land to respondents for Rs, 6,000 on 26-7-1980. No reason existed for Muhammad Hanif to adopt a different course ; that the plaintiffs had sued to pre-empt the earlier three sales. Respondents contrived a disguised gift to stale off the pre- emption suits pending against them. Land was purchased on payment of price, but in collusion with Muhammad Hanif false appearance of gift was given to the transaction. It was argued that Courts below have omitted to notice the true impact of the afore noted considerations when they found that transfer was a gift and not a sale. It was also strenuously argued that evidence has not been properly appreciated nor have the proper inferences drawn therefrom. Finding reached, therefore, was against the record. Learned counsel has taken me through the evidence led by the parties for and against. He also referred to a decision of this Court in Hayat All and ar other v Ghazan (represented by his heirs) (1) to contend that the decisions of the Courts below were not governed by the correct principles of law.
3. Point at issue falling for decision in the present revision is whether the transaction which bad all the appearance of a gift, was in fact a pre-emptible sale, by Muhammad Hanif to defendants. This question has been examined by the Courts below in the light of evidenc adduced and a finding of fact reached holding it to be a gift which was immune from pre-emption claim. Material point is, can a concurrently concluded finding of fact on the nature of transaction, be subjected to scrutiny before this Court in its revisional jurisdiction. To my mind, the question has to be answered against the petitioners for the obvious reason that whether the transaction was a gift or a sale, was a question of fact resolved in the light of evidence produced by the parties. Despite findings of Courts of fact wherein it was held that the transaction was in fact a gift, I have looked into the evidence, even while sitting in revisional jurisdiction, to see whether such findings were in any manner a vitiated by misreading/non-reading of record, omission to consider any important evidence of relevant circumstance having bearing on the decision to be reached or that, have the Courts below been guilty of any error relating to appreciation of evidence or law applicable. I have not been able to discover any such irregularity in the approach of the Courts. No doubt, in case of alienation of land in which a document has been executed purporting to be a deed of gift or of mortgage, it is open to a third party (pre-emptor) claiming to exercise right of pre-emption to prove that the transaction was in reality one of sale and the document sought to be impugned was brought into being to conceal its true nature and character and to deprive him of his right of substitution. There is a marked distinction between a device and a disguise. Device is permitted but not the disguise. Therefore, when the transaction has been given a false colour to evade third party rights, it is not only the function but is also the duty of Court to remove the veil, see through the disguise and then to determine the real and true character of the transaction. This power is available to the Court vide section 4 of Punjab Pre-eruption Act, 1913. It is equally true that a person is perfectly entitled to evade the law of pre-emption by all lawful and legitimate device in AIR 1978 Pb. & Haryana 94, a decision from Indian jurisdiction, learned Judges E of the East Punjab High Court after a deep survey of conspectus of
(1) 1981 CLC 456 ' decisions of the Punjab Chief Court and the Lahore High Court observed : "From the close scrutiny of the aforesaid authorities and on the basis of foregoing discussion, following conclusions are arrived at : (1) That it is open to the plaintiff to establish that the transaction in suit is in reality a sale and not an exchange or gift and the Court can inquire into the true nature of such a transaction.
Under the Evidence Act also, there is no bar to lead evidence to prove that the transaction was a sale ; (ii) that the vendor can defeat the right of pre-emption by all legitimate means ; (iii) if two views are possible, then the one which defeats the right of pre-emption has to be accepted ; (iv) if the Courts below have arrived at a finding that a certain transaction is a sale, exchange or a gift, as the case may be. This finding is not open to scrutiny in second appeal." It is in evidence that Mst.
Azmate, the maternal-aunt of the defendants was wife of uncle of Muhammad Hanif donor.
Evidence is also available to show that parties had good relations and that the defendants had rendered services to Muhammad Hanif. For this, latter was be Holden to Abdul Majid etc. Muhammad Hanif F appeared and deposed to the fact of gift and faithfully disclosed the circumstances under which he made the gift. Evidence led on behalf of the plaintiffs to prove that the transaction was a sale, has been disbelieved by both the Courts for good reasons. P. W. 1 and P.
W. 2 were found to be chance witnesses and the version given by them was held improbable. No reliable evidence was adduced to prove passing of consideration/payment of sale price. As to the motive for gift. It was G for the donor to decide who has adequately explained the reasons which prompted him to donate his land. Reasons given, in the circumstances cannot be held to be untrue. It was observed in Faqir Shah and others v. Khalo Khan and others (1) that "it is very difficult for a person who denies a certain transaction to prove that it is something else than what it purports to be, because the parties to the deed take all possible precautions to hide their true intentions, but in spite of that plaintiff must bring some circumstances on the record from which it can reasonably be inferred that the transaction was what the plaintiff claims it to be." Therefore, a heavy onus lay on the plaintiffs to prove by convincing evidence satisfying the judicial conscience of the Court that the transaction H shown to be a gift was in fact a sale intended to evade preemption claim. Muhammad Hanif owned two Kanals of land only. Al its transfer he abandoned his residence in the revenue estate and shifted to Alipur. Enough material was available on record to prove existence of relationship between the parties and the services rendered. The circumstance that earlier sales were subjected to pre-emption suits was of no material benefit to the plaintiffs. The present was an independent transaction to be judged on its own merits in the light of evidence brought on record. It is not open to a party aggrieved by the findings recorded by Courts of fact contend before the High Court that the evidence on which the findings are based is not sufficient to justify the findings of fact. It has always been recognised that sufficiency or adequacy of evidence to support a finding of fact is a matter for.), decision of the Courts of fact and cannot be agitated in second appeal muchless in revisional jurisdiction. Findings of Courts below do not seem to be vitiated by misreading/non-reading of record. Transaction was proved to be a gift. There is nothing wrong with this finding which is amply supported by evidence. Trial Court had also found issue No, 2
(1) PLD 1951 Pesh. 14 against the plaintiffs. First Court of appeal did not record its own finding on this issue. Learned counsel however did not address the Court on this aspect. Whole attack of the learned counsel was directed against the decision on issue No, I. Since I have not agreed with him on the nature of transaction, I find and hold that the petition for revision is devoid of force. It fails and is dismissed in limine.