' 29/5561 share accruing to 1 Kanal 9 Marlas area out of Khasra No, 1421 was acquired by Khan Muhammad and Abdur Rehman sons of Abdullah, the petitioners through exchange vide Mutation No, 2049 in lieu of their land in the same area out of two Khasra numbers given to Muhammad Aslam Khan vendor/exchanger vide Mutation No, 2048. Both the mutations were entered on 9-7- 1978 and attested on 27-8-1978 in the presence of the parties to 'the transaction. Mir Zaman respondent preempted the transaction of Mutation No, 2049 claiming the same a sale allegedly effected for consideration of Rs, 150 although ostensibly disguised exchange but no possession transferred on the spot nor the lands exchanged were earmarked through Tatimas. The pre- emptor claimed to be a co-sharer, contiguous owner and participator in appendages and immunities. Muhammad Aslam the vendor/exchanger was not impleaded a party although he was definitely a proper party rather more than a proper party in the sense that in case the transaction is held to be sale the transferors/petitioners shall ask for the return of the land given to him in the alleged exchange. The petitioners denied the superior right of pre-emption of the respondent and claimed the transaction a genuine exchange, besides raising objections of limitation, waiver and estoppel. There were framed the following issues in the case :-
(1) Whether the plaintiff has got a cause of action ? O.P.P.
(2) Whether the suit is within time ? 0 P.P.
(3) Whether the plaintiff has waived his right of pre-emption ? O.P.P.
(4) Whether the plaintiff is estopped by his own conduct ? O.P.P.
(5) Whether the suit transaction is exempt from pre-emption? O.P.P.
(6) Whether the plaintiff has got a superior right of pre-emption ? O.P.P.
(7) Market value ?
(8) Relief.
2. It is again pointed out that under section 4 of the N.-W.F.P. Preemption Act, 1950 the right of pre- emption only arises in respect of the sale of the land and property and when a transaction is ostensibly disguised other than a sale and the pre-emptor claims the same as sale the Court must strike an whether the transaction is a sale placing the onus on the pre-emptor to prove the issue. In the case the learned trial Court framed issue No, 5 whether the suit transaction was exempt from pre-emption with onus on defendant which is not a correct practice. Anyhow since the parties were conscious of the legal and factual points, they being at variance on them and they have adduced evidence for and against the points in issue and have not raised any such objection in the trial Court and appellate Court I would not detain myself any longer in the matter and shall determine the issues in the light of evidence on record.
3. The pre-emptor examined Patwari Halqa (P. W. 1) who placed on file Jamabandi Zar-e-Kar Exh. P.
W. 1/1 and stated that besides the two exchange mutations the defendants had also purchased land vide Mutation No, 2050 at the same time which is also a subject of pre-emption by the pre- emptor. He further stated that the lands exchanged were not ear-marked on the spot through Tatimas and no possession has been inter se transferred. He also placed on file Cust Panjsala vide the market value of the suit land was assessed for Rs, 360/60. There was not brought on file evidence about the market value of the land given in exchange by the defendants. Neither the Patwari Halqa nor the pre-emptor examined as P.W. 2 recorded any evidence about the market value of the said land. Pre-emptor, however, casually stated that there was a difference between the prices of the lands and the kinds of the lands and that no possessions have been transferred to each other. On the other hand the defendant examined as D. W. 1 stated that the land was acquired in exchange and possession inter se had also been transferred. He admitted that he had purchased land vide Mutation No, 2050 in the same Khasra and that all exchange mutation and sale mutation were entered and attested on the same days. He reported his ignorance if the kinds of the lands given in exchange were the same. He stated that in fact the land given in exchange was also situated in the close vicinity of the suit land. On the basis of the above evidence the learned trial Court held the transaction as sale chiefly for the reason that there has not been transferred the possession of the exchanged lands to each other and he accordingly granted a decree to the pre-emptor finding him a co-sharer on payment of Rs, 360.36., Since the pre-emptor has already deposited a sum of Rs, 150 he was, therefore, directed to deposit the balance amount within one month failing which the plaint was to be treated as rejected and the decree to be deemed to have been cancelled. The judgment and decree were given by the trial Court on 5-10- 1980. Here again it is pointed out that the learned Civil Judge should read the provisions of Order XX, rule 14, C. P. C. Which provide for the dismissal of the suit with costs if the purchase money is not paid by pre-emptor within the prescribed period. Under the terms of the aforesaid decree the pre- emptor was obliged to deposit the balance amount on or before 5-11-1980 but he deposited the balance amount on 6-11-1980 and thus in a way his suit stood dismissed as it was a contingent decree subject to the deposit of the purchase price and only on the fulfilment of the condition within the prescribed period the decree for possession in favour of the pre-emptor was to become operative. In case he was to commit a default in that respect the decree of the dismissal of his suit Kas to become effective. Law on the point is settled and reference may be made fo confirmation of the view to PLD 1966 SC 83. The defendants, however, still filed an appeal against the judgment and decree and also raised the objection of' the non-deposit of the balance purchase price within the prescribed period but the learned District Judge confirmed the judgment and decree of the trial Court on merits as well on the point of the deposit of the purchase price within the prescribed period as he thought that the pre-emption amount was to be deposited before 7-11-1980 and not on or before 5-11-1980. Defendants have to seek a redress as against the judgment and decree of the trial Court as well the appellate Court by the instant revision.
4. On the day of arguments respondent filed an affidavit for the first time posturing a case that he was directed by the trial Court to deposit the balance purchase price within a month vide his judgment and decree dated 5-10-1980 and that he had filed an application before the trial Court on 4-11-1980 for the deposit of the pre-emption money when as a result he was delivered voucher and challan on 5-11-1980 which he took to the National Bank, Mansehra for deposit where there was a great rush and so he deposited the pre-emption hmount on the following day i. e. On 6-11-1980.
The learned counsel for tne pre-emptor was to place reliance on an S. B. Authority published in P LD 1957 Lah. 72 in which it was observed that the effect of refusal of treasury and the bank to accept the deposit of purchase money in a pre-emption decree at any time within Court hours will amount to the closure of the treasury or bank for the day and would give the party conceined the same benefit as if the treasury or the bank was closed and he was to perform the act of the deposit of the pre-emption amount on the next opening day within the meaning of section 10 of the General Clauses Act, In the said authority it was also observed that if a party is confronted with such difficulty he is entitled to go straight to the Court and make a tender because the treasury or the bank appointed by the Court as its agent has refused the money from him and that the tender of the money in Court would be a due complianc of the orders of the Court. The affidavit filed by the pre-emptor at thi stage, is, however, not to benefit him. He has not exhibited his alertness and vigilance to approach the trial Court the same day on 5-11-1980, and to tender the pre-emption money nor he had relied on such like statement of facts before the first appellate Court wherebefore it was rather misrepresented that the purchase money was to be deposited by him before 7-11-1980 instead of on or before 5-11-1980. The correct legal position is that under Order XX, rule 14, C. P. C. a pre-emption decree is a decree in favour of the pre-emptor in the first instance and becomes operative on the deposit of the pre-emption money within the prescribed period and on failure it becomes a decree of the dismissal of his suit in favour of the vendee and automatically operates in the latter's favour. Only in case of closed holiday the act performed on the next opening day is acknowledged as due performance under section 10 of the General Clauses Act but if it is a case that a pre-emptor has been disabled like the rush on the bank on the last day for that he will have to demonstrate due vigilance and immediately approach the Court to tender he pre- emption money and only then to avail the benefit of section 10 of the General Clauses Act.
5. To sum up there emerges out a position on account of the failure of the pre-emptor to deposit the pre-emption money within the prescribed period that his suit stood dismissed and a corresponding decree in favour of the vendees shall be deemed passed. The vendees need not have filed an appeal against such a decree nor such a decree can be validly executed. Against them by the trial Court.
6. Besides above the judgments of the Courts below have held the transaction as sale in view of the only evidence that possession of the lands exchanged has not been transferred and the lands have not been earmarked on the spot through Tatimas. There has not come forth cogent evidence about the market prices of the lands exchanged for comparison. Oral statements of the plaintiff and the defendant on the point may rather rebut their versions by themselves. Plaintiff has not spoken a word if the land was actually sold for a certain price. Under section 54, T.P. Act sale is a transfer of ownership in exchange for a price paid or promised or part paid or part promised. Price is in fact the essence of a contract of sale and unless the price is fixed and it is paid or promised or part paid and part promised there is no sale in the eyes of law. It was held in AIR 1935 Pesh. 191 that as long as there is nothing to show that a consideration in cash has passed for the land which is sine qua none for making a transaction sale an exchange of plots of lands will be deemed as exchange and would not be liable to pre-emption. It was also held in PLD 1982 SC 17 that when consideration for transfer is not paid in cash but paid by transfer of ownership of some property such transfer will be an exchange and not sale. On the other hand reliance was placed on 1976 SCMR 104 where the learned District Judge and the High Court had concurrently found that the transaction amounted to a sale and not an exchange and the Supreme Court did not grant leave to appeal under observations that all the circumstances directly relevant to the question in. Issue particularly the disparity between the area as well as the respective locations of the two areas and the non-delivery of the possession of the land given in exchange to the vendor had been taken due notice by the High Court. Full facts of the said case are not being spelt out from the judgment but even the circumstances noticed by the High Court and approved by Supreme Court were not being found present in the case before me. Here the two areas exchanged are the same, the location is the same and in case of delivery of possession the lands exchanged are still being possessed by the old owners G as per statement of the Pa twari Halqa. It may rather speak of non- entit of the transaction as a sale or exchange. In the circumstances I would rather upset the concurrent findings of the Courts below on the issue and shall hold it as an exchange and not a sale.
7. In view of what has been stated above I would accept this revision petition, set aside the judgments and decrees of the Courts below and shall hold that the plaintiff's suit stood dismissed on account of the non-deposit H of pre-emption money within the prescribed period and that it is also liable to dismissal on account of the nature of the transaction not being proved as sale.
Parties are left to bear their own costs.