' SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the defendant-vendee in a civil suit to examine whether the High Court was justified in upsetting the concurrent finding of fact recorded by the two Courts with regard to the pre-empted transaction being an exchange and not a sale.
2. On the 8th of January, 1960 was entered a Mutation (Exh. D.4) whereby 44 Kanals 19 Marlas of land was sold by the appellant in favour of his vendors in the subsequent transaction. This sale was for a sum of Rs, 500. On 16-1-1960, the disputed sale of 210 Kanals 4 Marlas was reported for Rs, 700 in favour of the appellant-vendee. The land was situated in the same village. Both the Mutations were attested on the same date i.e, 31-8-1960 by Mr. Muhammad Saeed Oureshi (C.W. 3) who was then posted as the Revenue Officer in that area.
3. Mst. Hashmat Sultana, the plaintiff-respondent, a sister of the vendors, instituted a suit for pre- emption claiming superior right on account of her relationship with the vendors. In resisting the suit the appellant took up the plea that the transaction which was sought to be pre-empted was not sale at all. It was an Exchange and it was agreed that instead of being recorded as Exchange Mutations, the transaction would be shown as sale transaction. The market price of land at Rs, 3,500 and improvements over it to the extent of further Rs, 4,000 were claimed. The issues framed in the case suffered additions and modifications at various stages because the case was twice remanded by the District Judge for recording further evidence and findings. The issues on which the case proceeded to a decision were as follows:-- " (i) Whether the transaction in dispute is in reality an exchange? OPD.
(ii) Whether the plaintiff has superior right of pre-emption as against the defendant vendee? OPP.
(iii) If issue No,1 is proved in the affirmative what is the market value of the suit land? OP Parties.
(iv) If issue No, 1 is proved in the affirmative whether the land in dispute has been sold for Rs, 700?
(v) Whether the defendants made any improvement on the suit land. If so, to what extent?
(vi) Whether the suit cannot proceed in view of Martial Law Regulation No, 64-A?
(vii)
' On the controvertial Issue, whether the transaction was one of sale or of exchange, the trial Court held that it was entitled to examine the real nature of the transaction and further held that "admittedly no money was paid for the impugned mutation or the mutation No, 199 in favour of the transferors before the Revenue Officer or the Patwari. There is not other evidence to prove that any amount of money was paid." The Court also observed as follows:- "It is not possible to imagine that the vendors would sell the suit land measuring 210 Kanals and 4 Marlas and valuing Rs, 9000 for a petty amount of Rs, 700. The five yearly average is Ex. P.W. 8/1 and according to the same the value of the suit land comes to Rs,500.29. This average is on the face of it quite misleading because it is difficult to believe that the suit land which included some 56 Kanals of culturable land must have the value of only Rs, 500.29."
' The transaction was held to be Exchange. The market value of the land was held to be Rs,9000.
The vaule of the improvement over the land was held to be worth Rs,1,000. On these findings, the suit was dismissed.
4. On first Appeal before the District Judge, the evidence was reappraised.
' The District Judge upheld the finding of the trial Court by drawing the following inferences from the evidence brought on record:--
(I) "Abdul Hameed (P.W.-6) the vendor "denied that the transaction was an exchange but he did not say in clear words that they received an amount of Rs,700 or that they paid an amount of Rs,500 to the other party. As he is the brother of the appellant, therefore, much value cannot be given to his evidence."
(ii) "In this case the local commissioners were appointed twice but the reports of both the local commissioners were rejected. Their reports were that the approximate value of each land was about Rs,9,000. In the written statement the defendant stated that the value of each land was Rs,3,500. There is oral evidence on record that the value of each land was Rs, 10,000. Whatever the case may be, it is stated by most of the witnesses that the value of one land is equivalent to the value of the other land and in any case the value is not less than Rs,25(X). As both the mutations were entered in the month of January, 1960 and were attested on 31-8-1960, therefore, the presumption is that no money had passed from one party to the other and that it was a transaction of exchange."
(iii) "The witnesses produced by the defendant are quite independent and they clearly stated that it was a transaction of exchange. One of the witnesses had given clear reasons which forced the defendant to make an exchange with the brothers of the plaintiff. According to him, Muhammad Sharif the father of the plaintiff had forced the defendant to make an exchange because the land of the defendant was contiguous to his Dhoke, and he did not allow him to cultivate this land.
Originally he wanted to purchase it but as the defendant refused to sell it, therefore, he was forced to exchange it. On the basis of the oral evidene I hold that the transaction was an exchange."
' The learned District Judge also relied upon the decision of Gul Muhammad v. Tota Ram AIR 1915 Lah. 218; Prabhu Dial and another v. Shadi Ram and another AIR 1919 Lah. 246 and Nathu Mal v. Har Dial and others 1900 Punjab Record No, 97.
The judgment and decree of the trial Court was maintained and the First .
5. In Revision, the learned Judge in the High Court by the impugned judgment set aside the finding of fact recorded by the two Courts below and the reasons given were as hereunder:--
(i) "There is no explanation why the transaction of exchange of property was disguised as a transaction of sale. I have not been able to find out any explanation of this very obvious question on the whole of the record."
(ii) "D.W.-4 Rasul Ahmad attorney of the defendant-respondent stated that at the time of attestation of mutation the defendant had stated that he had not entered into a transaction of sale but he had exchanged his property but then on the asking of Mohammad Sharif he accepted it as a transaction of sale. This obviously could not be believed in view of what is recorded in the two documents Ex. D3 and Ex.D4 (mutations Nos.199 and 200). The learned District Judge has not considered this aspect of the case and the above evidence at all."
(iii) "He has also misread the evidence when he said that there was no evidence of actual passing of the money. It is clear from the said two documents that the passing of the money was admitted by each party. In the face of this admission in these documents it was unnecessary to prove it further particularly when the petitioner is willing to pay the amount which is described as the amount of sale in the document Ex.D.4."
(iv) "The learned District Judge has made much about the uniformity in the value of the properties but he has given several versions in this respect. There is evidence that the market value of the property was calculated according to Fard Punjsala and was about Rs, 500. There is other evidence that the value was Rs,3000. According to another piece of evidence it was Rs,9,000. According to oral evidence the value was Rs,10,000 but according to the written statement it was Rs, 3,500. In these circumstances I do not know how the learned District Judge could give a finding on question of uniformity of value of the property on this self-contradictory evidence. From this evidence he has drawn the conclusion that at least the value is the same. When the evidence is so discrepant, I do not see how this conclusion could be arrived at by him."
(v) "Another circumstance taken into consideration by the learned District Judge is the date of attestation of the two mutations but it will be hardly material because the date of entering the mutations in both the cases was different though the difference was only of 8 days."
' Finally, the conclusion of all the reasoning was summarised as hereunder:-- "Since the learned District Judge has not taken into consideration the entire evidence on record and the further circumstances referred to above particularly about the payment in cash of the value of the property and absence of any explanation as to why a mutation of sale was without any objection entered and attested, his finding cannot be treated to be a finding of fact. In my view this is a case of an out and out sale."
' The learned Judge decreed the pre-emption suit on payment of Rs,700 as price of the land and additional Rs, 1,000 as the costs of improvements.
6. Mr. Bashir Ahmad Ansari, Advocate, the learned counsel for the appellant/vendee urged that there existed no defect of jurisdiction or procedure so as to entitle the High Court in exercise of its revisional jurisdiction to interfere with a controverted question of fact. The learned counsel has in this context referred to the decision of Privy Council in N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board, Madras PLD 1949 Privy Council 26, where on the basis of a number of earlier decisions of the Privy Council it was held as hereunder:-- "Section 115 applies only to cases in which no appeal lies, and, where the Legislature has provided no right of appeal, the manifest intention is that the order of the trial Court, right or wrong, shall be final. The section empowers the High Court to satisfy itself upon three matters (a) That the order of the Subordinate Court is within its jurisdiction (I)) That the case is one in which the Court ought to exercise jurisdiction and (c) That in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of the trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the Subordinate Court upon questions of fact or law."
' The learned counsel has then referred to the cases referred to by the learned first appellate Court for establishing the identity of the cases where transactions expressed to be sales were taken to be in fact. Exchanges and exempt from preemption. Finally, the learned counsel for the appellant has referred to two recent decisions of this Court where the exact question whether transaction is a 'sale' or `exchange' has been taken to be a question of fact and hence a finding with regard to it not open to interference in the High Court. The decisions are Pir Walayat Shah v. Muhammad Shafi and another 1968 SCMR 1304 and Ata Muhammad Khan v. Mst. Khanzadi 1976 SCM R 104.
7. Maulvi Siraj-ul-Haque, Advocate, the learned counsel for the Preemptor/respondent has referred to the concluding portion of section 4 of the Punjab Pre-emption Act declaring that "nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale". His contention is that this limits the power of the Court to examine only those alienations which purport to be other than sale and on examining it to hold that in effect it is a sale.
On account of this specific mention, all other instances, particularly where a sale transaction is ex- facie in existence, the parties to the transaction and the Court both are precluded from examining it with a view to come to a conclusion that it is not a 'sale'. On that account, according to the learned counsel, the very assumption of the jurisdiction by the two Courts below was not justified under the law. In any case, according to the learned counsel for the respondent, full justification was made out for interference with this concurrent finding of fact because it had been recorded ignoring all the material evidence, it was against record and it was a perversity which could not the allowed to stand on record.
8. None of the Courts, including the High. Court while accepting the revision petition, has considered the power of the Court to be limited as is contended by the learned counsel for the respondent by the concluding portion of section 4 of the Pre-emption Act that "Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in effect a sale". The words of the law also are not couched in words which may be read as limitation on power of the Court. On the contrary it only makes clear by way of abundant caution a power which has been enjoyed and exercised by the Courts all along while dealing with pre-emption cases. For example, in Gul Muhammad Khan v. Khan Ahmad Shah (Punjab Records, No 29 of 1893), it was held that "whatever form the parties to the transaction may choose to give to it for their own purposes, or for the purpose of defeating a pre-emptor's claim, the question remains open to, the courts to decide whether the particular transaction does or does not amount to a sale within the meaning of that section, and that, in the case put, there could be no difficulty in deciding that it is"."
9. It is true that the controversy, whether a transaction of alienation is 'sale' or 'exchange', primarily involves a question of fact, All the same every finding of fact is hot immune from interference, in revisional jurisdiction. The 'precedent relied, upon by the learned counsel for the appellant itself makes it clear that in .Exercising the jurisdiction possessed, the Courts should not commit jurisdictional illegality. This concept of jurisdiction and illegality had been considered by this Court in the case of Kanwal Nam PLD 1983 SC 53, to cover cases where decision on facts is based on no evidence or inadmissible evidence or is so perverse that grave injustice would result therefrom.
Applying this test, if the reasons advanced by the High Court are correct on the legal plane as they are found to be, then the two Courts deciding the controverted question of fact, cannot be said to have acted with jurisdiction, because evidence has been misread at more places than one, conclusions drawn are against the pleadings and perverse.
10. The learned counsel for the appellant had referred to two cases which according to him are identical on facts, in support of his contention. In the case of Nathu Mal v. Har Dial and others (Punjab Records, No,97 of 1900) two deeds of sale were drawn up. After examining the deeds and considering the circumstances the transaction was held to be 'exchange' and the law laid down in Gul Muhammad Khan v. Khan Ahmad Shah (P.R., 29 of 1893) was followed. Two distinguishing features on facts of that case were that two deeds of sale were drawn up" contemporaneously, and "Rs, 50 cash was thrown in to equalise matters. No part of the value of the shop which it is sought to pre-empt was paid in cash".
' The other case relied upon by the learned counsel for appellant is of Prabhu Dial and another v.
Shadi Ram and another AIR 1919 Lah. 246, where the same distinguishing features are present. "Two deeds of sale were drawn up on the same day" and the amount of consideration was credited by reference to the other property forming the subject matter of the other sale deed.
' These two distinguishing features make the decision of no relevance to the present controversy.
11. On our part, we find that on no principle of pleadings or adjudication, could the two Courts hold that the value of the land in suit was Rs, 9,000 when the transaction under consideration gave its value as Rs,700 which was accepted by the plaintiff and that the defendant in the pleadings claimed no more than Rs, 3,500. It was an obvious perversity to go beyond what the defendant himself pleaded in supporting the appellant's cause.
12. Another perversity arises out of the fact that the two transactions which the Courts .Below merged into one of 'exchange' were distinct according to the, evidence of both the parties, in point of time, in consideration and in the antecedent attending circumstances. The only common feature was that the mutations were, attested on the same date and that may happen in respect of all the pending mutations of the same village, or circle. Ashiq.Hussain (C.W3) was called, by the Court as a witness in the case. And he admitted having entered mutation No,199 on 8-1-1960. The entries show That both the vendor and the vendee appeared before him and made a statement of which the, sale mutation was entered,' The attesting' officer has also appeared as Court witness. He had recorded the presence of the parties and their admission off the sale transaction. The mutation which is now the subject-matter of 'sale' was entered on 16-1-1960. The parties appeared before the Patwari and admitted the receipt of money and the transfer of possession before the attesting officer. The dance evidence, as pointed out' by the learned Judge in the impugned revisional order, was completely disbelieved by the trial 'Court in so fat as it was -claimed that, the appellant had either at the time of entry d3r at the time of attestation of mutation, objected to it when it was showed as a' 'sale' -mutation and it Was positively disclosed by him that it was an exchange mutation. Muhammad Sharif D.W.3, admitted that it was a 'sale' and that the mutationr attested was of 'sale'. He, however, stated that the appellant had remained silent, before the attesting Revenue Officer.
13. We find that all the reasons given by the High Court are borne out from the record and that the perversity of the decision on question of fact by the two Courts is well established and fully justified the learned Judge in exercising his revisional jurisdiction and interfering with the finding. There is no merit in the I appeal which is dismissed with costs.