1. ' This is a plaintiffs' second appeal and arises out of a pre-emption suit. Suit was dismissed on 19- 9.1966 and first appeal on 13-12-1966 by Additional District Judge, Rawalpindi (Civil Appeal No, 91 of 1966). In second appeal, only legal point, which arises for consideration is, whether the two transactions were in essence, one transaction of exchange or were two independent sale transactions.
2. ' The material facts are briefly as follows:- ' By Mutation No, 70, entered on 4-7-1964 and sanctioned on 17-7-1964 one Muhammad Akbar sold 44 Kanals 19 Marlas of land situate at Mouza Thekaryan, Tehsil Gujar Khan to Khuda Dad for Rs, 9,250, By another mutation 334 entered on 3-7-1964, sanctioned on 17-7-1964 aforesaid Khuda Dad transferred his 19 Kanals 18 Marlas of land situate at Mozua Phimal Miana, Tehsil Gujar Khan to Muhammad Akbar for Rs, 6,000. Plaintiffs Durvesh and Abdul Ghani, since deceased, and substituted by their legal heirs as collaterals, co-sharers in the property in suit and owners of the estate, pre-empted the transaction evidenced by mutation 70 of village The karyan, brought a pre- emption suit against Khuda Dad in the Court of Civil Judge, Gujar Khan, on 16-7-1965. Khuda Dad was made the sole defendant in the suit. It was alleged that property was sold for Rs, 3,600 only and the rest was a fictitious show of payment to evade the pre-emptors' rights to get the land. Suit was contested. It was submitted in defence that the two properties were exchanged and the transactions, though shown to be independent, were in essence really one transaction of exchange, and with regard to transfer of land (44 Kanals 19 Marlas) mutation 70, no suit for pre- emption could lie. Reasons for adopting such a course were given in para. 1 of the written statement. Further, right to pre-empt was also denied. On 18-11-1966 trial Judge framed necessary issues in Urdu, which rendered in English are :-
(1) Whether the transaction in dispute is not of sale? If so, with what effect? 0. P. D.
(2) Whether the right of pre-emption of the plaintiffs is superior to that of the vendee?
(3) What is the market price of the suit land?
(4) Relief.
3. ' After settlement of issues, Court postponed the suit to 16-2.1966 for parties evidence. On the date fixed for evidence viz. 16-2-1966, plaintiffs' counsel produced copy of pedigree table (Exh. P. 1), copy of mutation (Exh. P. 2), copy of Jamabandi (Exh. P. 4) and closed affirmative evidence with right to record the plaintiffs', statement 'after close of defence evidence. Thereafter, defendant entered upon his defence and produced Qadir Bakhsh. Fazal Ahmad, Muhammad Akbar, Waris Khan and also relied on copies of mutation 70 (Exh. D. 1), copy of mutation 334 (Exh. D. 2) and closed the defence. In rebuttal, Patwari Halqa (P. W. 1) proved sale averages (Exh. P. 3) and Durvesh plaintiff appeared to depose that land in suit was sold by Muhammad Akbar and that, the plaintiffs had better right. Trial Court examined the evidence, found that transactions though evidenced by two separate mutations of sale were in reality, one transaction of exchange in regard to which no suit for pre-emption could be filed. Right of pre-emption, however, was found to exist for the plaintiffs.
4. On appeal, finding on the nature of transaction was affirmed. Learned counsel for the appellants contended that the two transactions were independent sales and the Courts were erroneous in holding that these were in reality one .Transaction of exchange, and 'in recording the aforenoted conclusion, not only ignored the material evidence but also over-looked the apparent character of mutations, whereby different parcels of land for different sale price were sold by either party.
5. Counsel also argued, that, had the parties really intended to exchange their properties situate in two different, though adjacent, revenue estates, they could have easily achieved their object in one mutation of exchange or a registered deed. Land Reforms or any other law did not provide a bar for the mutual exchange of properties by Muhammad Akbar and Khuda Dad. Learned counsel took me through the entire record to persuade me to take a different view in regard to the nature of transaction and to hold that Courts below had proceeded on circumstances not very much relevant to the crucial issue. It was also stressed that when the parties have chosen to give a particular form to the transaction concluded by them, Court must hold them bound to it and should not allow them to take a different stand and also to plead differently so as to defeat a third party claim, who honestly believed the transaction as it looked. As against this it was argued for the respondent, that. The question that two transactions were in essence, one was essentially a question of fact and had to be determined on the appreciation of the facts and circumstances of a particular case. Also argued that when deciding such an issue, Court -must look to the intention of the parties, their conduct and the related circumstances to find whether they intended to conclude two independent transactions of sale or that the transactions though separate were part and parcel of one deal. It was also urged that concurrently concluded finding of fact based on appreciation of evidence is binding in second appeal and the correctness cannot be examined afresh, even if this Court were to hold a different opinion. For respondent, reliance was placed on Kishan Lal v. Ram Lal and others (l), Fateh Singh and another v. Prithi Singh and another (2), Ram Badan Lal and others v. Kunwar Singh (3), Aliah Dad v. Bagh Ali and Ayub (4), Sher Azam v. Fazle Azim Shah (5), Muhammad Zaman alias Mana v. Aslam and another (6), Fazal Rehman v. Amir Haider and another (7). As against this, learned counsel for the appellants referred to Ali Muhammad v. Malik Sonwal and others (8).
6. ' The crucial issue, whether the transactions were independent sales or were in essence one of exchange necessarily turns on the evidence brought on record by the contending parties. In this case, there is strong evidence, which, in my opinion, leave no manner of doubt that there was in reality one transaction which both the parties agreed to exchange their respective A, properties, though the object was sought to be achieved by two apparent sale mutations. Qadir Bakhsh and Fazal Ahmad deposed that Muhammad Akbar was eager to get land situate at Phimal Miana from Khuda Dad, which, the latter was not inclined to sell, but on their persuasion agreed to exchange his land (19 Kanals 18 Marlas) at Phimal Miana with Muhammad Akbar's land at Thekaryan. In regard to the difference in value of the respective properties, witnesses deposed that Muhammad Akbar was paid Rs, 11,500 to equalise the balance in the value of the two properties. Muhammad Akbar himself also appeared in Court and stated that he gave his land in exchange to Khuda Dad for the latter's land at Phimal Miana and received Rs, 5,500 in addition to make up the balance of the market value. He also deposed that the value of his land was assessed at Rs, 11,500 and that of Khuda Dad at Rs, 6,000. In this way a sum of Rs, 5,500 was paid to him by Khuda Dad so that the value of the property was equalised. Khuda Dad himself could not appear because of his stated old age and his son Waris Khan appeared to support the defence. He stated that Rs, 9,250 were paid by Khuda Dad {{FOOT NOTE}}
(1) AIR 1927 Ali. 696 (2) AIR 1930 Ali. 426
(3) AIR 1938 Ali. 229 (4) PLD 1968 Lah. 428
(5) 1972 SCMR 649 (6) PLD 1984 Pesh. 166
(7) 1986 SCMR 1814 (8) PLD 1961 Pesh. 62 {{FOOT NOTE}} to Muhammad Akbar in addition to the land given by him in exchange for the land received. Market value of the property in suit, according to the sale averages came to Rs, 7,398.77. Apart from oral statements, no material was brought on record to show the market value of property situate at Phimal Miana and at one time owned by Khuda Dad. Plaintiff does not claim to be a witness to the transaction but admits that some property was got mutated by Khuda Dad in favour of Muhammad Akbar, whether it was a sale or exchange, he expressed his ignorance. From the above, it emerges that certain facts are not in dispute. These are on 4.7-1964 Muhammad Akbar reported to village Patwari that he had sold land (44 Kanals 19 'Marlas) to Khuda Dad for Rs, 9,250 and had also transferred possession to him. Patwari entered the mutation, got its contents verified from the Girdawar Halqa on 10-7-1964, placed it before the Revenue Officer on 17-7-1964, when parties appeared and affirmed the transaction and the mutation was sanctioned. In regard to mutation 334 it was entered on 3-7-1964, its contents were verified by Girdawar on 10-7-1964 and on the basis of the affirming statements of parties, mutation was sanctioned on 17-7-1964. Both the mutations were taken up for attestation at Jatli and were sanctioned by the same Revenue Officer.
7. However, prices for which the properties were alleged to have been sold, were different, the one at Thekaryan was sold for Rs, 9,250, and the other at Phimal Miana for Rs, 6,000. It is correct that there is discrepancy in the statements of witnesses in regard to payment of the additional price. Qadir Bakhsh and Fazal Ahmad deposed tnat Muhammad Akbar was paid Rs, 11,500. Waris Khan asserted that Rs, 9,250 were paid by Khuda Dad to Muhammad Akbar. Muhammad Akbar deposed that he received Rs, 5,500 from Khuda Dad. In the written statement submitted by Khuda Dad, it was alleged that apart from the land, he also paid Rs 11;500. Question, that arises is, whether these discrepancies are so material as to find that the properties were not exchanged, but in fact were sold through two independent transaction as alleged by the plaintiffs. It is true that the Courts below had not adverted to the discrepancies in regard to payment of additional amount. That not-. Withstanding, statement of Muhammad Akbar, who was a party to the transaction was not only relevant but also assisted the decisipn of the issue. His statement cannot be disregarded. It was deposed by him that apart from the land received by him from Khuda Dad latter also paid him additional amount of Rs, 5,500 and that the two transactions though evidenced by two separate mutations were in essence one transaction of exchange and the additional amount was paid to make up the difference in value of the respective properties. In these circumstances, when a transaction is of a mixed character consisting of two parts that of sale and exchange and the property consideration is not negligible and the transaction is also one invisible, it cannot be regarded as sale. Refer Fateh Singh and another v. Prithi and another, Ram Badan Lal and others v.
8. Kunwar Singh and Aliah Dad v. Bagh Ali and Ayub. From the facts emerging from the record, case made out was that against 44 Kanals 19 Marlas of land, Khuda Dad gave 19 Kanals 18 Marlas and to make up the deficiency in price paid some additional amount. Property consideration, therefore, was a substantial part of consideration, and could not be taken as a negligible part. In regard to the contention, whether two transactions can be held to be one in essence. I have so far been discussing the issue without reference to decided cases. However, case law relied upon by learned counsel for the respondent from the Aliahabad jurisdiction assisted the decision of the case materially. In Kishan Lal v. Ram Lal and others, their Lordships, in somewhat identical circumstances observed:- our opinion extrinsic evidence was admissible for the purpose of showing that these two documents, though purporting to be separate sale-deeds, were in reality part and parcel of the same transaction, which was one of an exchange. We may refer to the case of Hanif-un-Nisa v.
9. Faiz-un-Nisa (1911) 33 Ali. 340 decided by their Lordships of the Privy Council. Such evidence which shows that two documents executed and registered on the same date are part and parcel of one transaction and in fact represented only one transaction, does not amount to leading evidence so as to vary the terms of a document. It was, therefore, open to the learned Judge to take into account such evidence. It, therefore, follows that his finding that the transactions were not two separate sale transactions, but only one transaction of exchange must be accepted."
10. The question, whether the two transactions were one, was in the last analysis essentially a question of intention of the parties and the Courts were not debarred to look into the relevant circumstances to find out their true intention, whether they wanted to sell the property or enter into the transaction of exchange. Court, it is well-settled, has to form an opinion on the merits of the case, after examination of all the material placed before it. Taking everything into account, I am not prepared to say or hold that the view taken by the Courts below was wrong, both on the factual as also the legal plane. For the above various reasons, the appeal, which is concluded by concurrent finding of fact, fails and is dismissed. However, under the peculiar circumstances of the case, I will leave the parties to bear their own costs.