' Mst. Rehmat Noor was owner of one-half share in the land measuring S Kanals 8 Marlas represented by Khasras Nos. 398 and 399, situated in Village Phagla, Tehsil and District Mansehra.
By a registered sale-deed dated 3-2-1975, she allegedly sold this land in favour of her nephew Abdul Qadar, for an ostensible pr ice of Rs, 2,000. This alleged sale was pre-empted by Haleem Shah and Imran Shah by two separate suits instituted respectively on 29-1-1976 and 2-2-1976.
During the pendency of the pre-emption suits, Mst. Rehmat Noor, by instituting on 3-3-1976 a suit for declaration against Abdul Qadir to the effect that she never sold that land in his favour and that the registered sale-deed, dated 34-1975 being the result of fraud and collusion was void and inoperative against her rights, got a consent decree passed in her favour on 10-7-1976. The pre- emptors by amending their plaints challenged that decree as well as being collusive and fraudulent and also added in their suits Mst. Rehmat Noor as one of the defendants. Both the suits instituted by the rival pre-emptors were consolidated and proceedings recorded in Suit No, 150/1.
Both the suits were contested by Mst. Rehmat Noor as well as Abdul Qadar, who denied the factum of sale of the suit land in favour of latter and also the superior right of pre-emption of the pre- emptors. It was further claimed by them that the consent decree obtained by Mst. Rehmat Noor was neither collusive nor fraudulent. The rival pre-emptors also contested each other's claim, and the learned trial Judge, in consolidated suits, framed the following issues :- "(1) Whether the transaction in question is pre-emptible ? 0. P. P.
(2)Whether the decree in Civil Suit No, 119/1 instituted on 3-6-1976 is collusive, based on fraud and is inoperative against the pre-emptive rights of the plaintiffs and is also void ? 0. P. P.
(3)Whether the plaintiffs have a cause of action ?
(4)Which of the rival pre-emptors has a superior right of pre-emption against the defendant ? 0. P.
P.
(5)Whether the sum of Rs, 2,000 was fixed in good faith and actually paid as a sale consideration of the suit land ? 0. P. P.
(6)What is the market value of the suit land ?
(7)Relief."
' On conclusion of the proceedings, the learned trial Judge, while discussing Issues Nos. 1 and 2 together, found that sale of the suit land did take place in favour of Abdul Qadar, which was hence pre-emptible, and that the consent decree in favour of Mst. Rehmat Noor, being collusive and having been passed during the pendency of the pre-emption suits, was ineffective against the rights of the pre-emptors. He also found Issue No, 3 in favour of the pre-emptors. On Issue No, 4 his finding was that both the rival pre-emptors, being owners of property contiguous to the suit land, had inter se equal right of pre-emption and against the vendee-defendant their right was superior.
Issue No, 5 was answered by him against the defendants and on Issue No, 6 he held that the market value of the suit land was Rs, 1,832.09. Accordingly, vide his judgment and decree, dated 12- 4-1979, the learned trial Judge granted to the pre-emptors the declaratory decree claimed by them and also a decree for possession by pre-emption of the suit land in equal shares on payment of Rs, 1,832.09 half of which amount was to be paid by each pre-emptor.
2. Feeling aggrieved, Mst. Rehmat Noor went up in appeal to the Court of the learned District Judge against the said decree. The appeal was registered as Appeal No, 84/13 of 1979. Haleem Shah pre- emptor also filed appeal in the same Court against the decree which was passed in favour of Imram Shah pre-emptor. This appeal was registered as Appeal No, 87/13 of 1979. So did Imram Shah pre-emptor, who instituted two appeals 'against the said decree, which were registered as Appeals Nos. 86/13 and 91/13 of 1979. All the four appeals were heard together by the learned District Judge, who disposed them of by a consolidated judgment, dated 26-1-1980, dismissing them all.
3. Mst. Rehmat Noor has challenged the said decrees in this Court by means of this revision petition. S. Abdus Salam Sarwar, Advocate appeared on behalf of the petitioner and Haji Sardar Bahadur Khan, Advocate appeared on behalf of Haleem Shah, respondent, the other respondent (rival pre-emptor Imram Shah) being out of contest having transferred his share through a deed in favour of Haleem Shah. The learned counsel were heard and the record of the case perused with their assistance.
4. While arguing the case, the learned counsel for the petitioner attacked the concurrent findings of the two Courts below only Issue No, 2, as, according to him, the petitioner was concerned with these findings and not with those given on other issues. The learned counsel contended that the petitioner had in this case straightaway denied the execution of the sale-deed and the receipt of sale consideration for the suit land. He submitted that since the petitioner was an old illiterate lady and was stated to have executed the sale-deed to her disadvantage in favour of the son of her brother with whom she was living, law protected her and placed heavy burden to discharge on the per son who claimed that the sale-deed had in fact been executed by her with her free consent and disposing mind and that she also fully knew and realized the consequences of her act when she was said to have executed that deed. The learned counsel contended that the mere fact that the pre-emption suits had been instituted against that sale would not make any difference and would not absolve the pre-emptors from bringing before the Court sufficient evidence to convince it that the suit land had in fact been sold by the petitioner with her free consent and knowledge in favour of Abdul Qadar and that the protection available to her in law was not available to her in the circumstances of this case. While reading the evidence produced by the pre-emptors in this case, the learned counsel urged that there was misreading of material evidence by the Courts below for reaching the conclusion in favour of execution of the sale-deed by the petitioner and that by doing so the learned Courts below fell into error in coming to a conclusion which was not warranted by facts and law. In support of his arguments the learned counsel relied on AIR 1939 All. 348, PLD 195.
Pesh. 59, PLD 1977 Kar. 688, PLD 1969 Kar. 324 and an unreported judgment of Lahore High Court, Rawalpindi Bench, in R. S. A. No, 173/81 which was confirmed by the Supreme Court in 1983 SCM R 1116.
5. The learned counsel appearing for the respondent argued that there was sufficient evidence on the record to show that the suit land had been sold and the deed of sale respecting it had been executed by the petitioner who had appeared before the Sub-Registrar at the time of registration of this deed and after understanding the nature of the transaction with free and independent mind had accepted its execution in favour of her brother's son. He contended that after pre-emption suits had been instituted against that sale a collusive decree in respect of the suit land was obtained by the petitioner against the vendee by filing in the Court, on 12-4-1976, a compromise to the effect that the disputed sale had been cancelled on the intervention of elders of 'Bradari'. The learned counsel contended that leaving aside the evidence led by the pre-emptors. Even Abdul Qadar, while appearing as his own witness, admitted in his statement in Court that Mst. Rehmat Noor had effected the sale and had appeared before the sub-Registrar at the time of registration of the sale-deed where she had admitted the execution of the deed and the receipt of sale consideration by her. He also contended that whether or not sale of the suit land in favour of Abdul Qadar had taken place was a question of fact and so was the question whether or not the consent decree obtained by the petitioner was collusive, having been obtained during the pendency of pre-emption suits instituted respecting sale, and both questions could not be gone into by the revisional Court in pusence of concurrent findings reached on them by the learned two Courts below. He contended that the principle of lis pendens was also attracted to the facts of these cases and the pre-emptors' pending suits could not be defeated by a collusive consent decree obtained by the petitioner in a suit instituted after the preemption suits. He argued that the authorities cited by the learned counsel for the petitioner in support of his arguments were not attracted to the facts of these cases, as under consideration were not the disputes between the vendor and the vendee, but were the disputes between the pre-emptors and the vendee in which the vendor did not figure at all. The learned counsel sought support for his arguments from 1982 SCMR 843, 1982 SCM R 938 and 1984 SCM R 203.
6. Both the learned Courts below, on the basis of the evidennee brought on record, have held that the land in suit had in fact been sold by Mst. Rehmat Noor petitioner in favour of Abdul Qadar respondent through a registered sale-deed, dated 3-2-1975. It has also been held that after the pre-emption suits to pre-empt the sale were filed by respondents Nos. 1 and 2, Abdul Qadar respondent, in collusion with petitioner, reconveyed the land in suit to the pkitioner through a consent decree passed or 10-7.1976 in latter's favour in a declaratory suit instituted by her on 3-3- 1976. Both the learned Courts have held that it was a re-sale of the suit land in favour of the petitioner and termed it as a collusive exercist adopted by both of them with a view to defeating the two pending pre-emption suits. The execution and the registration of the sale-deed, dated 3- 2-1975 by Mst. Rehmat Noor petitioner in favour of Abdul Qadar was proved on the record and the presence of Mst. Rehmat Noor petitioner before the Sub-Registrar at the time of registration of the sale-deed was even not denied by Abdul Qadar respondent when he appeared in the witness-box.
The pre-emption suits which_ resulted in decrees against Abdul Qadar respondent and also against 14st. Rehmat Noor petitioner, were pending in Court when after more than a year of the registration of the sale-deed a declaratory suit was instituted by Mst. Rehmat Noor, against Abdul Qadar respondent to set at naught the effect of the sale-deed, which was claimed by the petitioner to have been the result of fraud. The learned two Courts below, however, appear not to have accepted the story put forward by Mst. Rehmat Noor petitioner that the sale of the suit land in favour of Abdul Qadar respondent had, in fact, not taken place. Having arrived at this conclusion, after appraisal of evidence, there was no escape for the learned two Courts below from the conclusion that the land in suit had, in fact, been re-sold by Abdul Qadar respondent in favour of Mst. Rehmat Noor petitioner during the pendency of Lipre-emption suits, and for that reason, such retransfer could not affect the rights of the pre-emptors. This was the precise decision taken by the learned two Courts below, who also held the subsequent transfer of the suit land by Abdul Qadar respondent in favour of Mst. Rehmat Noor petitioner to be collusive. This was a finding of fact concurrently reached by the learned two Courts below and the learned counsel appearing for the petitioner failed to point out anything on the record to show that this finding was reached by misreading or non-reading of material evidence brought on record. In such circumstances, even if the conclusion reached by the learned two Courts below be taken to be erroneous, it cannot be disturbed by this Court while exercising revisional jurisdiction. The law cited by the learned counsel for respondent No,1, referred to above, is authority for this view.
7. No doubt, the learned counsel for the petitioner endeavoured hard to search the law on the point as to what would be the standard of proof required and on whom the ends would lie when the transaction is between an old illiterate lady, on the one hand, and her near relation who stands in active confidence, on the other. He has also referred me to certain authorities in his elaborate arguments which I have already noted down. These authorities are, however, distinguishable on facts, inasmuch as the cases to which they relate were the cases which were fought out between a lady of that type on the one hand, and a relation of that type, on the other, and in which undue advantage had been taken in obtaining gift, relinquishment of right, etc. During Marz-ul-Maut or soon after death of last owner or in circumstances of that nature and in which the ladies came forward soon to repudiate those transactions. Such was not the case here. The declaratory suit, as already observed, in this case had been instituted by Mst. Rehmat Noor petitioner after the lapse of more than a year of the registration of the sale-deed by her in favour of Abdul Qadar respondent, and after that sale had been pre-empted by two rival pre-emptors whose suits were pending in Court. The authorities cited by the learned counsel for the petitioner, being distinguishable on facts, were not attracted to this case and did not advance petitioner's cause.
8. Since the decision of this petition on re-appraisal of evidence about questions of fact on which the learned two Courts below have given B concurrent finding, this Court would feel hesitant in entering upon such re-appraisal, especially when no misreading or non-reading of evidence by the learned two Courts below could be pointed out.
9. For the aforesaid reasons, I find no merit in this revision petition which is hereby dismissed with costs.