' This revision petition is directed against the judgment and decrees of the learned District Judge, Mansehra, dated 18-11-1985, whereby he accepted the two appeals of the respondents and set aside the judgments and decrees passed in Suits Nos. 61/1 and 58/1 of 1983 respectively.
2. The facts of the case in brief are that one Mst. Hussan Jan transferred her entire property as given in the heading of the plaint in favour of Muhammad Afzal, Muhammad Aslam and Muhammad Akram sons of Mir Afzal (her son) vide Mutation No, 1861 attested on 11-3-1982 for a sale consideration of Rs,19,000. This transaction was pre-empted by rival pre-emptors namely, Rehmatullah and Sikandar sons of Abdullah by way of two different suits on the basis of co- sharership and participation in appendages and immunities.
3. The suits were contested by defendants on various grounds including the plea that the suit property was transferred in their favour by way of gift and not sale and as such the transaction was exempted from pre-emption. Both the suits of the rival pre-emptors were consolidated and on the pleadings of the parties the following issues were framed:--
(1) Whether the plaintiff has a cause of action?
(2) Whether the plaintiff is estopped by his conduct to bring the present suit?
(3) Whether the suit transaction is not sale for consideration and is in fact a gift, and is exempt from pre-emption?
(4) Whether this Court has got jurisdiction to entertain the present suit?
(5) Which of the pre-emptors have a superior right of pre-emption?
(6) Market Value.
(7) Relief.
4. After recording the evidence of both the parties and after hearing the arguments of the learned counsel for the parties the learned trial Court decided, issue No, 3 against the plaintiffs and by coming to the conclusion that the transaction is that of gift and not of sale as such exempt from pre-emption vide his judgment and decree dated 17-4-1984.
5. On appeal the learned District Judge, Mansehra, reversed the findings of the learned trial Court on issue No, 3 and held that the transaction is a sale as it stands in Mutation No, 1861 and allowed both the suits and passed a decree for possession through pre-emption in equal shares in favour of the respondents-preemptors on payment of Rs, 19,000 as sale consideration with no order as to costs vide his judgment and decree dated 18-9-1985.
6. I have heard the learned counsel for the parties and have perused the record.
7. The learned counsel for the petitioners submitted that issue No, 3 was wrongly framed and that the burden to prove this issue was wrongly shifted to the defendant/petitioner. According to the learned counsel the burden was on the plaintiff to have proved that the transaction was sale and not gift. He next contended that the Partwari Halqa who appeared as PW 1 produced five-yearly average Ex. P.W. 1/2 and according to that the value of the suit property came to Rs, 46,492.87 and the learned counsel submitted that who on earth will sell a property worth about Rs, 46,000 for Rs, 19,000 if the transaction had not been a gift. He next referred to section 4 of the Pre-emption Act, 1950 and submitted that mutation is not the only document which should be taken into consideration but the mutation should be scrutinized in the light of other evidence produced by the parties. He produced case-law on various points and finally submitted that as during the days of Martial Law there was ban on gifts, therefore, Mst. Hussan Jan instead of alienating her property in favour of her three grandsons through `hibba' she entered the impugned mutation by way of sale for Rs, 19,000 whereas in fact it was a gift.
8. On the other hand the learned counsel for the respondents submitted that the issue was correctly framed and the burden to prove issue No, 3 was also correctly laid on the defendants. He further submitted that there was no embargo on alienation of property by way of gift under Article 24 of the Martial Law Regulation 115. He argued that section 4 of the Pre-emption Act, 1950 has been wrongly interpreted by the learned counsel for the petitioner. In fact the wording of section 4 of the said Act would show that the Courts have the power to declare gift or exchange as sale but Courts have no power to declare sale as gift or exchange.
9. After hearing the arguments of the learned counsel for the parties and perusal of the record it would show that the issue No, 3 framed by the learned trial Court is to the effect "whether the suit transaction is not sale for consideration and is in fact a gift, and is exempt from pre-emption." I find that this issue is properly framed and there is nothing wrong with it. The burden was correctly shifted to defendants to prove that the transaction was not sale but was hibba. In this view of the matter there is no force in the contention raised by the learned counsel for the petitioners.
10. The next submission of the learned counsel for the petitioners is also devoid of force because the transaction was between Mst. Hussan Jan and her grandsons, therefore, Rs, 19,000 were entered as sale consideration in the mutation and when the transaction is between blood relations than in normal circumstances the sale consideration is always less. The price as determined in five-yearly average is no yardstick to prove that the transaction was gift and not sale because there is a difference in the sale consideration entered in the impugned mutation and in the average.
11. There is a controversy between the learned counsel for the parties over the wording used in section 4 of the N.-W.F.P. Pre-emption Act, 1950, therefore, for convenience sake section 4 is re- produced below:-- "Right of pre-emption.--The right of pre-emption shall mean the right of a person to acquire agricultural land or village immovable property or urban immovable property in preference to other persons, and it arises in respect of such land only in the case of sales and in respect of such property only in the case of sales or of fore-closure of the right to redeem such property."
' Nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale."
' The last wording of the section that "nothing in this section shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale" would clearly show that the Court has got the power to say that the exchange or C gift between the parties is sale but the Courts have no power to say that the transaction shown as sale is gift or exchange. The learned counsel for the petitioner failed to cite any judgment of a superior Court on the subject where a sale transaction has been declared as gift or exchange by the Court, therefore, I find no force in the contention of the learned counsel for the petitioner in this regard.
12. The contention of the learned counsel for the petitioner was that M.L.R. 115 para. 24 lays restriction on alienation by way of gift, therefore, Mst. Hussan Jan transferred the disputed property by way of sale. The wording of paragraph 24 of M.L.R. Reads as:-- 'Restriction on alienation of holdings.--(1) No person owning more than the area of an economic holding shall be allowed to alienate by sale, mortgage, gift or otherwise any portion of his holding which may reduce the size of his holding to an area below the limit of an economic holding.
' Provided that such a person may alienates his entire holding."
' The proviso has made it clear that if any person alienate his entire holding then the embargo on transaction by way of gift will not be there. It is in the evidence that Mst. Hussan Jan had transferred her entire property in favour of her grandsons, therefore, the transaction will not be hit by paragraph 24 of M.L.R. 115 as contended by the learned counsel for the petitioners.
13. The perusal of impugned mutation Ex. P.W. 2/1 (1861) attested on 11-3-1982 would show that in column No, 13 sale has been mentioned and the sale consideration is given Rs, 19,000 as stated by Mir Afzal, who is the father of Muhammad Afzal, Muhammad Akram and Muhammad Aslam (grandsons of Mst. Hussan Jan), in whose favour the disputed land was transferred. In the impugned mutation in column No, 15 again sale is mentioned which is under the signature of the Patwari dated 2-1-1982. In column No, 15 of the impugned mutation there is a note of the Patwari that Mst. Hussan Jan is the owner in the same revenue estate in which she is transferring the land and she is transferring her entire share in favour of her grandsons, in the same estate who were not owners of any land. The impugned mutation has been attested on 11-3-1982 which shows that Mst.
Hussan Jan had herself appeared before the Revenue Officer and she was identified by Sarfaraz Khan and Manzoor Khan sons of Qost Muhammad Khan and again she has stated before the Revenue Officer that she has sold her entire land to her grandsons for sale consideration of Rs, 19,000. The impugned mutation is further supported by the statement of Mst. Hussan Jan who appeared as D.W. 2 and she stated that she has sold the land to her grandsons. She has also admitted in her statement that the mutation was of sale and that she herself went to the Patwari and got entered the mutation and she appeared before the Thesildar and admitted before him that the mutation was correct and may be attested. The entries in the impugned mutation and the statement of Mst. Hussan Jan D.W. 2 will sufficiently prove that the transaction was that of sale and not gift. The burden to prove that the transaction was gift and not sale was on the defendants and they failed to discharge this burden. It may also be noted that neither Mir Afzal the father of Muhammad Afzal and his two brothers in whose favour the property was transferred appeared before the Patwari and got entered the transaction of sale but the defendants failed to produce him as a witness in their favour nor they cared to produce the two identifying witnesses Sarfaraz Khan and Manzoor Khan on whose identification the impugned mutation was attested by the Revenue Officer. At least one of them should have been produced to prove that the transaction was that of gift and not of sale. As best evidence was available with the petitioners/defendants but they failed to produce that evidence, therefore, adverse inference will be drawn against the petitioners. Sikandar appeared as D.W. 1 and Qalandar and Shamarez Khan appeared as D.W. 4 and D.W. 5 respectively. All the above witnesses have admitted that at the time of attestation of the impugned mutation they were not present, therefore, their testimony is of no help to the petitioners.
Moreover, D.W. 4 Qalandar Khan admits that he is on inimical terms with Sikandar preemptor and there was a criminal case under section 307, P.P.C. Between them. It has been admitted by Shamarez Khan D.W. 5 that he is related to defendants and his daughter has been engaged to Muhammad Aslam and for the proposal of the engagement the mother of Mir Afzal and Muhammad Aslam had come to Sham arez Khan.
14. The authorities produced by the learned counsel for the petitioners are not relevant to the facts of the case and thus not applicable. All the authorities produced by the learned counsel for the petitioners are on the subject where exchange/gift has been declared by the superior Courts as sale but there is not a single authority cited by the learned counsel for the petitioners to show that sale has been declared as gift/exchange.
15. For the foregoing reasons I am of the considered view that the contents of the impugned mutation have sufficiently proved that the transaction of sale was correctly entered in it and was correctly attested by the Revenue Officer on the admission of Mst. Hussan Jan in presence of two respectable identifying witnesses and the finding of the learned first appellate Court on issue No, 3 is well-founded and does not need any interference by this Court in revisional jurisdiction being a question of fact.
16. Consequently, while maintaining the finding of the learned appellate Court, I dismiss the revision petition with no order as to costs.