' SAAD SAOOD JAN, J.---This appeal by special leave is from the judgment of the Peshawar High Court whereby the judgment of the District Judge, Abbottabad, affirming the judgment of the Civil Judge, Abbottabad, was set aside and the suit for pre-emption brought by the appellants was dismissed.
2. The property in dispute, measuring 3 kanals and 16 marlas, is situate in village Thora KaIan of tehsil Abbottabad. It was owned by respondents Nos.1 and 2, hereinafter referred to as the contesting respondents. It may be mentioned that respondent No,2 is a widow and respondent No,1 is her daugther. On 12-6-1976 the local Revenue Officer attested two mutations to give effect to a transaction of sale allegedly made by the contesting respondents in favour of respondents Nos.4 and 5 for a consideration of Rs,10,200. Soon after the attestation of the mutations the contesting respondents challenged their correctness alleging that they had mortgaged and not sold the land to the transferees. The matter was taken to a local Jirga which gave its decision in favour of the contesting respondents. To give effect to the decision of the Jirga the contesting respondents on 11-3-1976 filed a suit for a declaration that the transaction was one of mortgage. Respondents Nos.3 and 4 confessed judgment and accordingly a consent decree was passed in favour of the contesting respondents on 31-3-1976. In accordance with the consent decree, consequential mutations were attested by the local revenue officer on 20-6-1977. By another mutation attested on 23-8-1977, the contesting respondents sold the land in dispute to respondent No,3.
3. On 25-4-1977 the appellants filed a suit for pre-emption in respect of the `sale' evidenced by the mutations attested on 12-6-1977. Their case was that the transaction in question was an outright sale and that the consent decree obtained by the contesting respondents was a collusive one, intended to deprive them of their right of pre-emption. The suit was resisted by the contesting respondents and the main controversy between the parties related to the nature of the transaction. The trial Court resolved this controversy in favour of the appellants and decreed their suit. The contesting respondents took an appeal before the District Judge who after affirming the finding of the trial Court dismissed it. The appellants then filed a revision petition in the High Court.
A learned Single Judge after re-appraising the evidence reversed the findings of the subordinate Courts, set aside their judgments and dismissed the suit of the appellants.
4. In support of this appeal, it is contended that the controversy between the parties related to a question of fact and that the High Court was not competent in revisional jurisdiction to reverse the concurrent findings recorded by the subordinate Courts. In support of his contention, reliance has been placed on a number of decisions of this Court reported as Manager, Jammu and Kashmir State Property v. Khuda Yar PLD 1975 SC 678, Taj Ali and others v. Nizamuddin PLJ 1975 Kar. 206 and Muhammad Ibrahim v. Muhammad Munir Madni 1980 SCM R 754.
5. It is no doubt true that in exercise of revisional jurisdiction it is not open to the High Court to interfere with a finding of fact unless it is based on misreading of evidence or has been arrived at by overlooking some material evidence. In this particular case the learned District Judge and the trial Court based their finding on four considerations, namely,
(i) the mutations attested by the local revenue officer clearly mentioned that the transaction was one of sale; unless there was some strong evidence to the contrary there was no reason why the entries in the mutation should not be accepted as such;
(ii) the consent decree obtained by the contesting respondents was of doubtful validity and in any case the appellants who were not party to the suit were not bound by it;
(iii) Abdur Rahman who had identified the contesting respondents before the local revenue officer stated that the contesting respondents had admitted during the attestation proceedings that they had sold the land; and
(iv) according to the report of Patwari, the price of the land as computed from five-yearly average was only Rs,1914/96 whereas the consideration paid by respondents Nos.3 and 4 was admittedly Rs,10,200; no one would ordinarily accept as security property which was worth much less than the amount sought to be secured.
6. In revision the High Court noticed that the subordinate Courts had overlooked certain material circumstances and also misread the record with regard to the price of the land in dispute. In this context, it observed that the contesting respondents were women to whom the nature of transaction had not been explained at the time of the attestation of the mutations. The appellants had not produced any witness who was present at the time when the transaction was effected between the parties. According to the Roznamcha Waqiati the transaction had been reported to the Patwari by respondents Nos.3 and 4 in the absence of the two women. Soon after the nature of the mutations attested by the Revenue Officer came to their notice, the contesting respondents raised a protest and even brought a suit. The suit was decreed before the pre-emption suit was filed by the appellants. Respondents Nos.3 and 4 did not contest the suit and had lost all interest in the land. They did not object either at the time when the mutations of sale were being substituted with the mutation of mortgage or when the contesting respondents further alienated the land in dispute in favour of respondent No,3. The conduct of the parties to the transaction supported the assertion of the contesting respondents that they had not sold but merely mortgaged the land in dispute. As regards the price of the land, the High Court noticed that the computations made by the Patwari on the basis of the five-yearly average were totally unreliable as the appellants themselves were prepared to pay a much larger amount, that is, Rs,10,200 for acquiring the land in dispute. A part of the land in dispute was being used for residential purposes and if a sale that had taken place only a year earlier, was taken into account, the price of the land would come to be Rs,45,000. Taking all these circumstances into consideration the High Court accepted the averment of respondents Nos.1 and 2 with respect to the nature of the transaction and reversed the concurrent findings of the subordinate Courts.
7. After hearing the learned counsel for the parties, we find that there was sufficient legal basis with the High Court for interfering with the findings of the subordinate Courts on the nature of the transaction. It is to be noticed that the contesting respondents were illiterate women belonging to the back-waters of Abbottabad tehsil. It is no body's case that on 12-6-1976 when the two mutations came up for attestation before the local revenue officer, any male member of their family was present to explain to them the nature of the transaction that was being recorded. Then their subsequent conduct by taking the dispute to the Jirga and bringing an action in a Civil Court supported their assertion that they had merely mortgaged the land in dispute. All this happened before the appellants brought their suit for pre-emption. The persons most adversely affected by the assertion of the contesting respondents were respondents Nos.3 and 4. Their conduct also supported the stand taken by the contesting respondents. They did not dispute the assertion of the contesting respondents and tamely allowed a decree to be passed against them. They also did not protest when the contesting respondents sold the land in dispute to respondent No,3. The computation made by the Patwari with regard to the price was clearly unreliable as the appellants themselves were prepared to pay Rs,10,200 without any hesitation for acquiring the land in dispute.
These were material circumstances which were overlooked by the trial as well as the appellate Court. The High Court was therefore right in setting aside their finding on the nature of the transaction. We are unable to find any merit in this appeal which is hereby dismissed with costs.