' One Ghulam Hussain son of Qamar Din filed a suit for pre-emption on 9-1-1967 in the Court of Civil Judge, Chakwal. The suit was filed to enforce the right of pre-emption in respect of sale of suit land measuring 10 kanals 19 marlas bearing Khasra No,299-min, in Mauza Khara, Tehsil Chakwal, in consideration of Rs,1,375 on the ground of being the legal heir of Mst. Fattan, the vendor. It was averred in the plaint that the transaction of exchange incorporated in Mutation No,292 attested on 9-1-1966 was a sham transaction. It was in fact a sale but was given the colour of an exchange in order to defeat the right of pre-emption.
2. It may be stated over here that Mutation No,292 attested on 9-1-1966 incorporated a transaction of an exchange by virtue of which Mst. Fattan transferred the suit land in favour of Jam Allah Dad Khan who transferred to her the agricultural land measuring 31 kanals in Khasra No,2044/1811 in Mauza Khara, Tehsil Chakwal. The suit was contested. It was pleaded that the transaction was in fact exchange which had taken effect, therefore, the suit was not competent. The superior right of pre-emption was also denied. The divergent pleadings of the parties led to the framing of following issues:--
(1) Whether the transaction in dispute is out and out a sale? OPP
(2) If so, whether the plaintiff has a superior right to that of the defendant No,1? OPP
(3) What is the market value of the suit land? O.P.Parties.
(4) What is the effect as to the rights of defendant No,2 ? OPP
(5) Whether the objection filed by the defendants cannot be considered being filed after the period fixed for the purpose? OPP
(6) If not whether the report of the local Commissioner is incorrect? OPD
(7) Relief.
3. The learned Civil Judge by his judgment and decree dated 9-4-1969 decreed the suit in consideration of Rs,2,000. The learned trial Court decided issue No,1 in favour of the appellant/plaintiff. It was held that the transaction was in fact a sale and not an exchange. Issue No,2 was also decided in favour of the plaintiff.
4. The appeal filed by the respondent/vendee succeeded before the learned Additional District Judge who by his judgment and decree dated 20-11-1969 set aside the finding of the learned trial Court on issue No,l. It was held that the transaction contained in Mutation No,292 was in fact an exchange. The learned Additional District Judge did not place reliance upon the oral evidence. The learned Additional District Judge concluded that P.W.2 admitted in cross-examination that he and the plaintiff/respondent were inter se related to each other. Gul Muhammad P.W.3 was also an interested witness as his mother is the paternal-aunt of the plaintiff/respondent. It was found that Rehmat Khan P.W.4 was a chance witness. Noor Hussain, in whose baithak the agreement of sale was said to be finalized, did not appear before the Court. The oral evidence on the question of factum of sale as well as receipt of the consideration was found to be discrepant, interested and untrustworthy. Issue No,2 was not contested. Therefore, the learned Additional District Judge affirmed the finding of the learned trial Court on issue No,2.
5. Both the learned counsel for the parties have confined their arguments on issue No,l. The main thrust of the learned counsel for the appellant is that the finding of the learned Additional District Judge on issue No,1 was incorrect and had been passed with material irregularity by brushing aside the oral evidence. He further submitted that there was a colossal disparity between the value of the land given to the vendee/defendant and the land obtained by Mst. Fattan in exchange.
According to the report of the local Commissioner P.W.6, the value of the land in dispute came out to be Rs, 2,000 while the value of the land received by Mst. Fattan was Rs,422.20. This disparity in the value of both the lands established that the transaction contained in Mutation No,292 was in fact a sale and it was a device to defeat the right of pre-emption. He further argued that it was the duty of the Court to unveil the transaction and discover the true character of it. He maintained that the testimony of the local Commissioner P.W.6 coupled with the oral evidence of P.Ws.2 to 5 and P.W.7 established the true nature of the transaction that it was in fact sale. He supported his arguments by placing reliance upon Sheikh Usman and others v. Muhammad Shafi Khan (AIR 1927 All. 204), Allah Ditta v. Hani and another (AIR 1934 Lah. 823) and Syed Shehbaz Hassan v. Syed Muhammad Hussain and others (1977 SCMR 197).
6. While controverting the arguments of the learned counsel for the appellant, the learned counsel for the respondents raised preliminary objection that the finding of the learned Additional District Judge that the transaction was in fact an exchange and not a sale was a pure question of fact, hence, stood concluded by the finding of the first appellath Court. Therefore, it was not open to scrutiny of this Court under section 100, C.P.C. Strength was sought from Nadir Shah v. Lal Shah and Amir Hussain Shah (PLD 1954 Lah. 447), Mst. Bashiran and 3 others v. Ahmad Bakhsh and others (PLD 1955 Lah. 187), Abdul Majid and others v. Khalil Ahmad (PLD 1955 FC 38) and Allah Dad v. Bagh Ali and another (PLD 1986 Lah. 428).
7. The learned counsel for the respondents argued that the statements of P.Ws. 2 to 4 were rightly disbelieved as they were interested witnesses*who had a common interest to fabricate the version of sale and the payment of consideration in the Dera of Noor Hussain. It was vehemently asserted by the learned counsel the respondents that the appellant/plaintiff had banked upon the theory of disparity in value of land and has not in fact impeached the execution of exchange at all.
8. ' After hearing both the parties and perusing the record, it is held that the preliminary objection of respondent No,1 is formidable one. Learned counsel for the appellant neither pointed out any misreading nor showed any non-reading of the evidence. As such, the finding of the learned Additional District Judge as to the nature A of the transaction is a pure question of fact inferred from the evidence on record and is not open to scrutiny under section 100 of the Code of Civil Procedure. I, therefore, hold that the question raised by the appellant as to the nature of the transaction is a question of fact which cannot be reopened by this Court.
9. Even otherwise adverting to merits of the case, the solitary circumstance of disparity in price in a transaction of an exchange cannot demolish the transaction itself. The exchange and sale are distinguishable from each other. Section 118 of the Transfer of Property Act defines the term "Exchange" which is reproduced as below:-
118. "Exchange" defined.- When two persons mutually transfer the ownership of one thing for ownership of another, neither thing or both things being money only, the transaction is called an "exchange".
' A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale. Section 54 of the Transfer of Property Act defines the term "sale" which is reproduced below:--
54. "Sale" defined.- "Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. Sale how made.- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
' In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
' Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
' Contract of sale.--A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
' It does not, of itself, create any interest in or charge on such property.
10. A bare reading of sections 118 and 54 of the Transfer of Property Act would show that an exchange is a mutual transfer of ownership. In a transaction of an exchange, the consideration is the transfer of land while the sale is the transfer of land in consideration of price. It is the case of the appellant himself in his examination that Mst. Fattan received the land which was barren except four kanals while the suit land is completely fertile and near Abadi Deh. He did not impeach the transaction itself. Nowhere the contemporaneousness of the transaction of exchange mentioned in Mutation No,292 was challenged. Evidently, there was no challenge to the completion of exchange itself. The oral evidence is, therefore, contradictory to the case of the appellant/plaintiff.
11. The contracts entered into by the parties cannot be brushed aside merely on the basis of conjectures and surmises. This rule has D been firmly laid down in the decisions of the superior Courts of Pakistan. Reliance may be placed on Ali Muhammad v. Malik Sanwal and others (PLD 1961 Pesh. 62), Shah Wali v. Allah Rakha and another (PLD 1982 SC 17) and Salahud Din Khan etc. v.
Qalandar etc. (1984 SCMR 1412). The learned Judges of the Supreme Court in Salahud Din Khan's case held that mere basis of price of land forming the part of a transaction' of exchange is not sufficient to discredit the exchange. Similarly in Muhammad Irshad and 4 others v. Sardar Khan (1981 CLC 124 Lahore), the High Court held that the circumstances that the better land was exchanged with inferior land cannot be considered as leading to a conclusion that it was not an exchange but was outright sale. Section 118 of the Transfer of Property Act does not prescribe the keeping of strict equation between the value of the properties exchanged as a sine qua non for validity ofi exchange.
12. The upshot of the appeal is that this Regular Second Appeal fails and is hereby dismissed with no orders as to costs.