' This petition seeks revision of the judgment and decree of the learned Civil Judge, Mandi Bahauddin, dated the 7th September, 1976, dismissing the petitioner's suit for possession by pre- emption of 14 Marlas of land being 1/15th share of land measuring 10 Kanals 10 Marlas situate in the area of village Kakka, Tehsil and District Gujrat, which respondent 1 is alleged to have purchased from respondent 2 and of the learned Additional District Judge, Gujrat, dated the 7th February, 1979, affirming in appeal the decision of the learned trial Court. Mst. Began, respondent 2, was the owner of the aforementioned 10 Kanals 10 Marlas of land. On the 30th December, 1973, mutation No, 672 (copy Exh D.1) was sanctioned by the revenue officer regarding gift, purported to have been made by Mst. Began, of 14/15th share of 10 Kanals 10 Marlas of land in favour of her son, Babu, respondent 3, and of the remaining 1/14th share in favour of Muhammad Abid, respondent 1. Muhammad Abid is not related to Mst. Began. He is resident of another village named Anney.
2. Describing the alienation of 1/15th share of 10 Kanals 10 Marlas of land in dispute effected by respondent 2 in favour of respondent 1 to be a sale and not a gift, Sardara, petitioner, who is a collateral heir of tespondent 2 and whose right of pre-emption is admittedly superior to that of respondent 1, instituted suit for possession by pre-emption of the land in question. He averred that respondent 2 had sold the land to respondent 1 for RS,140 which amount was rather in excess of its market value. He pleaded that respondent 1 had conspired with respondents 2 and 3 to get the mutation of gift attested in order to save his other lands from the operation of law of pre-emption.
3. Respondent 1 contested the suit and maintained that he had acquired the land from respondent 2 through gift which was not pre-emptible. He claimed that he had been since his forefathers teaching in religious institution without any remuneration and for that reason respondent 2 had made gift of the land in dispute in his favour. He objected to the sustainability of the suit on account of the petitioner's failure to give Khasra numbers of the land in dispute in the plaint.
4. It may be mentioned that whereas it was mutation No, 672 which had been sanctioned on the 30th December, 1973, in regard to alienation which was subject-matter of litigation the petitioner inserted the number of mutation as 764 and its date of attestation as the 30th December, 1974, in the plaint. The learned Civil Judge considered the description of the suit land to be defective as no copy of mutation No,674 sanctioned on the 30th December, 1974, had been produced by the petitioner to show that the land in dispute was the same regarding which the said mutation had been sanctioned. He formed the view that the transfer of the land by respondent 2 in favour of respondent 1 was by means of gift and as such it was not pre-emptible. Therefore, he dismissed the suit. His findings were endorsed in appeal by the learned Additional District Judge.
5. Undeniably it was Mutation No, 672 which was sanctioned on the 30th December, 1973, in respect of the alienation in question. Writing of Mutation No, 674 and date of its attestation as the 30th December, 1974, in the plaint was considered to be a clerical error and its amendment was allowed by this Court. With the correction of the mutation number and date of its sanction the defect described by the learned Courts below in the plaint stands removed. The land in dispute can identified with reference to the entries in the said Mutation. Non-mentioning of Khasra numbers of the land is not such a defect as renders the suit liable to dismissal. The authority Sarwar v. Hakim Khan PLD 1958 (W.P.) Lah. 568, referred to by the learned counsel for respondent 1, does not endorse the argument that mere failure to enter Khasra numbers in the plaint in the instant case should entail the penalty of dismissal of suit.
6. The circumstances in which respondent 2 was said to have been persuaded to gift the land in favour of respondent 1, as brought out in the evidence produced by respondent 1, are these. The late Wali ()Bah, father of respondent 1, was said to be a religious scholar Muhammad Arif, D.W. 1, who is a Muazzen and Khateeb in village Nain, clothed himself to be a pupil of the late Wali Ullah. He says that he told respondent No,2 that the father of respondent 1 had been his teacher and that she should gift 14 Marlas of land to respondent 1 and she said that she would do so. He confirmed that the late Wall Ullah had a square of land in village Anney and about 10 Kanals 12 Marlas of land in village Kiddar. Muhammad Abid, respondent 1, as D.W.2 stated that his father had been teaching in village Anney and that the gift in his favour had been effected through Maulvi Muhammad Arif, D.W.1. He admitted that he had purchased 36 Acres of land in village Kakka through two or three Mutations and that suits of pre-emption of the sales had been instituted. These sales were effected after he had secured 14 Marlas of land from respondent 2.
7. Unquestionably respondent 2 is neither related to respondent 1 nor is shown to be in any way beholden to him. Respondent 2 is no shown to have any contact with respondent 1 before alienating the land in his favour. She is not a person of superfluous wealth. Actually 1i Kanals 10 Marlas of land in suit was all that she owned. As conceded by the learned counsel for respondent 1, the father of respondent 1, in view of the religious order to which he belonged, would not have in any case accepted the gift of the land in dispute from respondent 2. In these circumstances it looks unnatural that just at the asking B Maulvi Muhammad Arif, D.W.1, respondent 2 would have gifted th land to respondent 1. In view of the rule laid down in Chiragh Din v. Allah Din 70 Punjab Records 1916 and Hayat All v. Ghazan 1981 CLC 456, the transaction cannot but be treated to be a sale and not a gift. The insistence of the learned counsel for respondent 1 that in the absence of proof of payment of sale price the alienation could not be considered to be sale is not apt and in this behalf his reference to the definition of sale contained in section 54 of the Transfer of Property Act, 1882, and what has been observed in Ali Muhammad v. Sanwal PLD 1961 (W.P.) Pesh. 62, Sher Azam v. Fazle Azim Shah 1972 SCM' 649, which deal with transactions of exchanges, is otiose. As observed in Tara Chand v. Baldeo 117 Punjab Records 1890, in such a case to expect the plaintiff to produce eye-witnesses to a sale is to expect an impossibility because if there was a sale it must have been effected in a secret manner and care must have been taken to conceal it. Therefore, mere absence of proof of payment of sale price would not prevent the Court from holding the transaction to be a sale if other material on the record and existing circumstances justify such a conclusion. As already remarked there was no connection between respondents 1 and 2 and the reason given for respondent 2's move to gift the land to respondent 1 is not acceptable at face value by any standard of rational thinking. She would not have parted with the land except for consideration. Without going deeper into the matter the learned Courts below by confining themselves to superficial examination did not correctly interpret the evidence. By not attaching due importance to the various factors noticed above they committed illegality therefore, their finding touching the nature of transfer of land in dispute cannot be sustained, the transfer cannot but be taken to be a sale.
8. The learned counsel for the respondents tried to argue that actually respondent 1 had adopted the device of procuring the land by gift in order to ward off and successfully resist the pre-emption suits in respect of the lands which he intended purchasing in village Kakka. However, this stance is not spelled out either from his pleadings or from the evidence that he adduced. Therefore, the argument which seems to have been developed for the first time before this Court deserves least attention.
9. In view of the above the petition is accepted, the judgments and decrees of the learned Courts below are set aside and a decree for possession of the land in dispute is passed in favour of the petitioner and against respondents 1 and 2 and it is directed that the petitioner shall pay into the trial Court the sum of RS,250 which amount the learned. Appellate Court below has assessed to be the market value of the land in dispute and to which neither party has taken exception, on or before the 19th April, 1984, and respondent 1 shall deliver possession of the land in dispute to the petitioner whose title thereto shall be deemed to have accrued from the date of such payment but if the amount of RS, 250 is not so paid the petitioner's suit shall be dismissed with costs. The parties are left to bear their own costs throughout.