' This Regular Second Appeal arises from the judgment/decree dated 4-12-1969 of the learned District Judge, Sialkot, whereby the First Appeal preferred by the vendee-appellant was dismissed upholding the decree for possession through pre-emption of the land in dispute earlier passed against him by the trial Court.
2. Noor Hussain and Karam Din, vendors, who were earlier Sikhs, transferred the land in question in favour of the appellant Muhammad Sultan by a registered deed dated 23-11-1964 apparently through a gift. Faqirullah and Muhammad Irshad Ahmad Khan, plaintiffs, sought its pre-emption stating that the transaction in fact was one of sale for Rs,16,000 inasmuch as the deed itself mentioned the sum as value of the land and that the gift was only a disguise. They asserted that unlike them, the appellant-vendee was not an owner in the estate, nor did he belong to the vendors' tribe or caste, nor had he any connections whatsoever with them to form raison de'etre for making a gift in their favour. They claimed better right of pre-emption on the further ground that they were co-owners in the patti as also the Khata whereas the appellant had no interest therein.
They joined appellant No,2 Bashir Ahmad as party on account of his having purchased a part of the suit land from appellant No,1 during pendency of the suit.
3. The appellants filed a joint written statement affirming the gift. They denied if the transaction was a sale or that they had paid Rs,16,000 as its price. Mention of this sum- in the deed was explained 'away by them on the ground that some amount had to be shown for purposes of purchasing the stamp papers for the gift. They denied the respondents' better right of pre-emption maintaining that they could not legally raise any objection to the validity of the gift.
4. The Courts below concurrently held that the transaction was a sale and hence decreed the respondents' suit on payment of Rs,16,000 as pre-emption amount.
5. No other question than the true nature of the transaction was canvassed in support of the revision petition. It could hardly be disputed that the same was one of fact which may not be broached in revision. However, one of the reasons to hold the transaction not to be a gift was that it was not accompanied by delivery of possession, which was thought to be a sine qua non for a valid gift. The other reason to hold the gift to be a disguise was that while the deed itself indicated that it was made in the name of God (Fi Sabilillah), the oral evidence disclosed that it was made in lieu of services rendered by the appellant-alienee towards the alienors.
6. As the order dated 14-9-1970 would show, the R.S.A. Was admitted on the ground that a third person like a pre-emptor could not assail validity of a gift on the plea that it was not accompanied by delivery of possession. Reliance in this behalf was placed upon Fazal Ahmad v. Mst. Rakhi (PLD 1958 Lah. 218). Ch. Khurshid Ahmad, counsel for the appellants strenuously argued that according to the rule enunciated in the aforementioned case and also in Kalu Beg, Afzalbeg and others v.
Gulzarbeg Lal Beg and others (AIR (33) 1946 Nagpur 357), it was not open to the respondents-pre- emptors to object to validity of the gift on the ground of non-delivery of possession. He claimed that such a 'plea could be raised only by the donor himself and added that non-delivery of possession in this case was even otherwise of no consequence inasmuch as the donors and the donee lived together jointly in the same house so that the land already lay in possession of the donee. Similarly he assailed the view that there was any inconsistency in regard to the factum of the gift merely because it was stated in the deed itself to have been made in the name of God (Fi Sabilillah) while the evidence suggested that it was made in lieu of services rendered by the donee towards the issueless donors. His contention was that the expression "Fi Sabilillah" used in the deed signified motive on the part of the donors, whereas services rendered to them by the dunce constituted consideration for making the same, and this is how he reconciled the two terms. He sought support from Hiralal Chimanlal v. Gavrishanakar Ambashankar (AIR 1928 Bombay 250) at p.2.57), Debi Saran Kari and another v. Nandalal Chaubey and others AIR 1929 Pat. 591), Istak Kamu Musalman v. Ranchod Zipru Bhate and others (AIR 1947 Bombay 198), Hari Singh and others v. Kallu and others (AIR 1952 Allahabad 149) and Hayat Ali and another v. Ghazan (represented by his heirs) (1981 CLC 456) where making Dhann was construed to be equivalent to a gift, Bakhsheesh or disposal "Fi Sabilillah" used in the present case. He submitted that distinction between motive and consideration for a gift, Dhann or Bakhsheesh was clearly visualized in all these decided cases and that the difference, if any, between them was never held to be fatal to the disposition of the property.
7. On the other hand, Ch.Mushtaq Ahmad Khan, Advocate for the respondents reiterated various circumstances which formed basis for the plea that the transaction was not a gift par excellence.
His submission was that the parties to the transaction were not inter-related, they had mentioned a specific price for the land in the deed itself; possession of the land was not delivered to the appellant-vendee and that there was no occasion for him to have rendered any services to the vendors. According to him, these circumstances clearly established that the apparent shape of the gift was colourably used as a disguise. He equally took exception to the rule that a pre-emptor could not assail a gift for want of locus standi to raise objection to its validity on account of non- delivery of possession. He asserted that the ratio of the Hayat Ali's case was overruled lately in Muhammad Sadiq and 2 others v. Barkat All and 4 others (1990 CLC 533), where it was clearly laid down that a pre-emptor could always object to validity of a gift in order to show that it was really a sale, and amenable to his right of preemption. He cited Chiragh Din v. Allah Din and another (1916 P.R. 70 Page 208) as well to strengthen his argument that there was nothing in section 4 of the Punjab Pre-emption Act, 1913 which could prevent a Court from holding that an alienation purporting to be other than a sale was in effect a sale. Thus, for establishing true nature of a transaction, even oral evidence as distinguished from the deed itself, was permissible. Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 SC 519) was quoted for making such oral evidence admissible in order to show that what was scribed in the deed was really something colourable.
8. Considering the pros and cons, I. Find that a pre-emptor could not be precluded from stating that the apparent shape of a transaction was really not what it purported to show and that conversely he could establish that it was in effect a sale. The rule earlier propounded in that Hayat Ali's case has been superseded lately as reported in the Muhammad Sadiq's case. There could be no two opinions about a pre-emptor's right to attack a transaction for the purpose of showing its true nature and for that as held in the Muhammad Shafi's case, he could even bring on record oral evidence though ostensibly it may be inconsistent with what might have been shown in the deed.
Thus there was no point in the argument of the appellants that the respondents had no locus standi to dwell upon this objection.
9. The attempt to reconcile making gift Fi Sabilillah, or for services rendered was equally inefficacious. It was a question of fact concurrently found against the appellants. The established facts were that they had no relationship whatsoever with the vendors who earlier being Sikhs had adopted Islam. They were shown to have neither wives, nor issues and looked to be an easy prey for any self-seeker. Why after all they chose the appellant-Muhammad Sultan for making the so- called gift in his favour. The latter did not assert in the written statement if the gift was being made in his favour Sabilillah or for services rendered by him. The written statement is completely silent as to any such motive or consideration for making the gift. It passes one's comprehension as to why the appellant was allowed to agitate that the gift in his favour was based upon such a motive or consideration. Both the points involved a factual inquiry. The rule which has been by now established was that any factual point not raised at the earliest before the trial Court, could not be subsequently introduced. Allah Ditta v. Ghulam Haider and others (1988 SCMR 964) can be safely quoted for this purpose. For this reason alone various authorities alluded to in support of the appeal would become irrelevant/ Conversely, the objection taken by him in the written statement was that the respondent/pre-emptor could not legally object to its validity. Since this hypothesis has been demolished by the rule propounded in the Muhammad Sadiq's case, there remained nothing else at least in the pleadings to object to the respondents' right of showing the transaction to be in effect a sale. This is what section 4 of the Punjab Pre-emption Act, 1913 authorises and the same was upheld in the cases of Chiragh Din and Muhammad Shafi.
10. There was equally nothing to hold that concurrent findings of fact were arbitrary or capricious.
The Chiragh Din's case was sought to be distinguished on D the ground that the alienors there had their own issues, whereas those in the present case were issueless. I do not think, this distinction could be of any material effect. The vendors had no relationship whatsoever with the vendee, nor did he lay a claim in the written statement of having been helpful to them in any manner. Besides, mentioning Rs,16,000 as price of the land in the deed itself served as an unassailable indication that in the back of their minds they were evaluating the land for this consideration. The argument that its mention was necessary for purchasing stamp paper and registration may not be that helpful, as no attempt was made to show if the property was not worth this amount. In the written statement no claim was made that the land was worth a sum much higher than Rs,16,000 and hence fixation thereof was not without purpose.
11. As a result of the above discussion, I see no substance in the appeal and the same is dismissed leaving the parties to bear their own costs.