Petitioner-plaintiff brought a suit for possession through pre-emption in respect of an area of 5 kanals 8 marlas of the total area measuring 7 kanals 12 marlas of khasra No.2321. The contents of the plaint are that defendant No.2 was the owner of the suit khasra number, who sold an area of 5 kanals 8 marlas out of it through Mutations Nos.2542 and 2543 both sanctioned on 24-9-1980 but collusively camouflaged Mutation No.2542 for an area of 3 kanals 6 marlas as that of an exchange in order to ward of the exercise of pre-emptive rights. This exchange mutation was described as sham and fictitious on the ground that its sale price has been included in the sale Mutation No.2543; that these two mutations were attested at the same time on the same date; that no possession of the area allegedly given by defendant No.1 in exchange for the property in question has exchanged hands. It was also averred in para `D' of the plaint that"
It is important to note that the property given in exchange by defendant No.1 to defendant No.2 through mutation No.2541 was subsequently sold by defendant No. 1 to defendant No.2 by Mutation No.2655 attested on 19-10-1981 which has been marked as Ex.P.W.2/4 on the record. Patwari Halqa appeared as P.W. 1 and brought on the file various documents from the Revenue Record. Plaintiff himself appeared as P.W.2 and stated, Defendant No.1 while appearing as D.W. 1 stated in cross-examination, The learned trial Judge while deciding issue No.7 which reads, "Whether suit transaction is in fact a sale", held "The counsel for the plaintiff stressed that property which was alienated to defendant No.2 has been sold to defendant No. 1. This alone cannot be and is not sufficient to prove that suit transaction is in fact a sale". Accordingly the exchange was admitted as genuine and the defendant vendee was held co-sharer in the suit Khata on the basis of this exchange mutation and as such being possessed of equal right like that of the plaintiff, the suit of pre-emption was dismissed. The appellate Court adopted the same view as that of the original Court and observed: "The mere fact that during the progress of the suit the property in dispute reverted back to its owner is not sufficient to hold that the device had been manipulated in order to frustrate the pre- emption suit and convert the sale into exchange". This revision has, therefore, been filed to impugn the legality and correctness of the said judgments.
2. The learned counsel appearing for the parties argued in support of their view points and the relevant record was considered in the light of these submissions.
3. It is manifest from para `D' of the plaint and its reply in the written statement reproduced above that the defendant tried to be evasive in his reply and wanted to avoid the positive allegation of the intended sale by him in favour of the plaintiff of the property ostensibly obtained by him through exchange Mutation No.2542. The defendant instead of denying the proposed retransfer merely said that it would require proof. This proof was ultimately provided in shape of Mutation No.2655 through which the property allegedly obtained in exchange by defendant No.2 from defendant No.1 was sold to the latter. It appears from the conduct and tenor of the cross- examination of the plaintiff by the defendant that the latter blamed the former for this retransfer through Mutation No.2655 when we look at the following sentence: The defendant while appearing as D.W.1 stated in his cross-examination, It is recognized principle that in a civil suit onus to prove an issue may change side in the light of the evidence of the parties which was to discharge the burden I initially. After establishment of the said facts and circumstances the onus of issue I No.7 as reproduced above shifted to the defendant No.1 to make out that the exchange in his favour by Mutation No.2542 was in no way connected with the sale Mutation No.2543. 1t is correct that no direct evidence has been led by the plaintiff to show that the consideration had been paid but it is obvious that the parties take care to conceal the true character of the transaction and in the nature of things such evidence could not be brought. It is conceded that no hard and fast rule can be laid down as to when two transactions amount to sale or to an exchange and each case should be considered on the basis of the materials on record and the surrounding circumstances. It also cannot be disputed that a genuine device can be adopted to ward of pre-emptive rights but the marked distinction between a device and a disguise is to be kept in view. The Court would try to discern the true nature of the transaction and to expose if the sale transaction has been given the guise of an exchange. In this case the true character of the exchange was clearly exposed by the sale of the exchanged property through Mutation No.2655. Instead of either showing that the subsequent sale was genuine and that the sale consideration .Has been passed, defendant No.1 all along tried to disown it while defendant No.2 chose not to appear and contest. This conduct of the defendant cannot be lost sight of which B is rather most relevant for assessing the true nature of the transaction. It is clear from all these materials that the transaction contained in Mutation No.2542 was purposely camouflaged and given false appearance of an exchange in spite of the fact that it was really meant to be a sale and to be acted upon as such and to be a I part of sale Mutation No.2543. The learned Courts omitted to take into ' consideration the relevant evidence brought on record in this respect and to draw correct inference from facts proved on the case file, and, therefore, legally erred in their decisions. 1, therefore, hold that the alleged exchange Mutation No.2542 was in fact a sham transaction and was disguised and camouflaged as such otherwise as a matter of fact it was part and parcel of the sale transaction covered by Mutation No.2543 and was, therefore, pre- emptible. The vendee-defendant has, therefore, no right of co-sharership in the suit khata on the basis of this exchange mutation.
4.The revision petition is, therefore, accepted, the suit of the plaintiff---petitioner for possession through pre-emption is decreed in respect of the land covered by both the Mutations Nos.2542 and 2543 on payment of Rs.26,497 as worked out in five years average prepared by the patwari and accepted by the trial Court as the price of both the said mutations. Three months time is allowed to deposit the balance of pre-emption amount, in default the suit shall stand dismissed with costs throughout otherwise the parties will bear their own costs.