MUHAMMAD BASHIR KHAN JEHANGIRIJ.- Maidullah Jan alias Khamidullah Jan son of Nusrat resident of Bachkan Ahmadzai owned 136 kanals and I6 marlas of land comprised in Khatas No.525 and 526 of the Register Haqdaran-e-Zamin for the year 1971-1972 and situated in village Baist Khel, Tehsil Lakki, District Bannu. On 17th June, 1978 by mutation of exchange No.9886 Maidullah Khan gave 7 kanals and 15 marlas of land out of the land aforesaid to Teri Khan his co-villager and took in turn this much area from him which was also situated in that village. By an other mutation No.9888 attested on 17.6.1978 he mortgaged the remaining 129 kanals and 4 marlas of land aforesaid to Teri Khan for a sum of Rs.25,000/. Again by mutation No.9892 dated 17-6-1978 Maidullah Jan sold for Rs.15000/- the equity of redemption of 129 kanals and 4 marlas of land alongwith 7 kanals and 15 marlas of land which he has got in exchange from Teri Khan to Abdul Manan and Baidullah Jan sons of Teri Khan. Abdul Manan and baidullah Jan in their turn on the basis of mutation No.9956 attested on 24-12-1978 gave in exchange 129 kanals 4 marlas of land, the equity of redemption whereof they had purchased from Maidullah Jan, to their father and got from him on the same date that much area from him on the strength of Mutation No.9955. Attacking transactions of exchange by mutations Nos. 9886 dated 17-6-1978 and 9956 dated 24-12-1978 as sale, Zarif Khan brought a suit not only for possession by pre-emption of the sale aroresaid or of the equity of redemption, as the case may, on payment of Rs.5000/-, but also sought a declaration to the effect that exchange mutations No.9886, 9888 and mortgage mutation No.9956 besides being fictitious were void and ineffective qua his preemptive rights.
2. All the three defendants in their to separate written statements inter alia staled that the transactions in dispute were in fact of an exchange and of mortgaged and, therefore, were not pre-emptiable.
3. Cn the pleadings of the parties the learned trial Judge framed the following issues:-
1. Whether the suit is bad for mullifariousness?
2. Whether the suit is within the?
3. Whether the plaintiff is estopped to sue?
4. Whether mutation No.9886 evidencing exchange prima facie, is in fact a mutation of sale?
5. Whether mutation No.9888 (mortgage) and 9956 (exchange) are illegal and invalid?
6. Whether the plaintiff has a sup'erior right of pre-emption?
7. Market value?
8. Relief.
4. The learned trial Court decided issues 1 and 3 against the plaintiff and ssues No.2,4 and 5 in favour of the plaintiff and held that the transactions in lispute were in fact of sale while on issue No.6 he held that the plaintiff was ossessed of superior right of pre-emption regarding suit Khatas No.525 and 526 vhile he had no such right in Khata No.343 and by judgment and decree dated 7- -1982 granted a decree for possesion by pre-emption with regard to Khatas Jo.525 and 526 on payment of Rs.25,000/-. It appears that .The learned Additional district Judge, in view of the joint statement of the three counsel for the parties, ccepted the appeal by his judgment dated 27-7- 1983 and remanded the case back0 the lower Court for trial denovo. Complying with the order of remand, the jarned trial J udge recasted the issues as under:-
1. Whether the plaintiff has got a cause of action?
2. Whether the suit is bad for misjoinder of causes of action?
3. Whether the suit is within the?
4. Whether the exchange transactions vide mutations No.9886 and 9956 dated 17.6.1978 and 24.12.1978 arc infact that of sale transactions and not of exchange? If so, its effects?
5. Whether the mortgage mutation No.9888 dated 17.6.1978 in favour of defendant No .3 is wrong, illegal, against facts and has been entered just to obtain enhanced amount from the plaintiff in the pre-emption suit? If so, its effects?
1 6. Whether the plaintiff has got superior right of pre-emption?
7. Whether the sale consideration of Rs.25,000/- has been fixed in good faith or actually paid?
8. Market value of suit land?
9. Relief.
5. The learned trial Judge decided issues No.4 and 6 against the plaintiff and held that the transactions evidenced by mutations No.9886 and 9956 were in pact of exchange and dismissed the plaintiffs suit, leaving the parlies to bear their own costs. On appeal the learned Additional District Judge to concurred with the findings of the learned trial Judge on issues No.4 and 6 and dismissed it with no order as to costs.
6. The plainliff-pre-emptor feeling dissatisfied has come up to this Court' in revision.
7. The crucial question for determination is whether the finding of the to Courts below that transactions in dispute evidenced by mutations No.9886 dated 17-6-1978 and 9956 Dated 24-12- 1978 had not been disguised and were in reality of exchange. Both the Courts below were persuaded to hold that these to transactions were of exchange, for, no price was proved to have been paid to the defendants-respondent No.1, to start with the learned counsel for the petitioner placed reliance on Faqir Shah Vs. Khalo Khan (PLD 1951 Peshawar 14) to contend that it is very difficult for a person, who attacks certain transaction to prove that it is something else than what it purposts to be, because the patties to such transaction take all precautions to hide their true intentions, and that the plaintiff may point ou^ on the record to satisfy the Court that there are circumstances from which it can reasonably be inferred that the transaction was what the plaintiff claims it to be. In the instant case the learned counsel for the petitioner alluded to the following circumstances to show that the to transactions of exchange were in fact of sale:-
1. That various transactions brought about by mutation No.9886, 9888 and 9888 were entered and attested on one and same day.
2. That mutation No.9886 dated 17-6-1978 is of sale on the ground that > Kamil Khan (pW) had deposed to have witnessed payment of the sale consideration.
3. That circutious method through which the land had virtually been mutated in the name of defendant-respondent No.3, is by itself sufficient to dislodge the presumption that the transactions would be taken on its face value.
8. In support of these grounds the learned counsel for the petitioner referred to the following case law:-
1. Races Jeevan. Vs. Akhar Ali (1984 SCMR 776).
2. Muhammad Azim Khan. Vs. Muqaish a (PLD 1968 Peshawar 12Q).
3. Unreported judgment of this Court in C.R.No.34 of 1983 titled: Muhammad Nawaz V. Shaista Khan etc. Decided on 28-11-1984.
9. As against this, the learned counsel for the respondents argued that the concurrent findings of fact that there being no evidence of passing of consideration in cash, the transactions Were of exchange and, therefore, not preemptible, thus the Court would be very reluctant to hold otherwise.
They placed reliance on:(l) Sher Azam. V. Fazal Azim Shah (1972 SCMR 649), (2) Ali Muhammad V.
Malik Sanwal (PLD 1961 (W.P) Peshawar 62), (3). Muhammad Amin V. Ghulam Yasin (PLD 1983 Peshawar 13) and (4). Ghulam Hussain V. Allah Dad (PLD 1989 Lahore 73).
10. The ratio in all these authorities is that a transaction whick is, prima facie, an exchange, in order to provp that it was in fact a sale, the pre-emptor must prove that a considcratin in cash had passed for the property, because the consideration in cash is a sine qua non for making a transaction of sale. In all these cases, excepting that of Muhammad Amin, the land obtained in exchange by the parties to the transaction of exchange had remained intact in their names and the objections of difference in areas transferred, disparity in prices and non- transfer of posssesion of the lan thereof between the parties were not held to turn the transaction of exchange into those of sales. The case in hand is not of the nature that Maidullah Khan had outrighlly exchanged land in suit with Tehir Khan. Here a novel and circuitous method was devised to transfer the land in dispute virtually in favour of Teri Khan. As stated earlier, Maidullah respondent by mutation No.9886 dated 17-6-1978 gave in exchange to Teri Khan respondent 7 kanals and 15 marlas of land out of Khata No.525 and 526 and on the same day got in return from him by mutation No.9887 equal area out of Khata No.343. But on the same day, by mutation No.9888, Maidullah Khan, purportedly mortgaged for a sum of Rs.15,000/- the remaining area of Khata Nos. 525 and 526 at the hands of Teri Khan respondent. Again on the same day on the basis of mutation No.9892, Maidullah Khan not only sold 7 kanals 15 marlas of land comprised in Khata No.343, which he had obtained in exchange from Teri Khan, but also sold the equity of redemption in respect of 129 kanals of land out of Khata Nos.525 and 526 to Abdul Manan and Baidullah Jan, sons of Teri Khan respondent. Within a period of about six months, Abdul Manan and Baidullah Jan respondents by virtue of mutation No.9956 gave 129 kanals and 4 marlas of land to their father Teri Khan respondent and in return purported to get this much area from their father. The ingenuity of this whole exercise that 129 kanals and 4 marlas of land in Khata Nos. 525 and 526, which was intended to be sold to Teri Khan respondent, was purportedly transferred by circuitous and winding channels through partial exchange and partial mortgage was finally mutated in his name through his sons to whom the equity of redemption of a sale substantial share of this land had been sold. Conversely, Maidullah Khan was not left with any land and in lieu whereof he purported to exchange with and mortgage to Teri Khan respondent. All these transactions point to one irresistible conclusion that Maidullah Khan had sold his land measuring 136 kanals and 19 marlas comprising khata Nos.525 and 526 to Teri Khan under the cloak and guise of exchange of a small parcel and mortgage of a substantial portion to him but employed the novel techinque of the sale of equity of redemption of the whole of his sons, Abdul Manan and Baidullah Jan respondents, who in turn purported to exchange the' whole with their father Teri Khan respondent. By these tetics, the land which was intended to be transferred to Teri Khan respondent as of sale was transferred to him as such by ostensibly getting first Rs.15,000/- as mortgage charge and subsequently on receiving Rs.25,000/- as consideration for sale of small parcel and sale of equity of redemption of the remaining substantial share without any corresponding transfer of land. From this it follows that there was an eieemtn of price in eftsh in all these transactions as defined in section 54 of the Transfer of Property Act, 1881 (IV of 1882) and that there was no element of transfer of land between Maidullah Khan and Teri Khan respondents as defined in section 118 thereof. Maidullah Khan respondent was left with no land in pursuance of the so- called exchange, mortgage and sale of equity of redemption. The authorities relied upon by the learned counsel for the respondents are clearly distinguishable and are not attracted to the case in hand. Obviously, the to Courts below while arriving at the conclusion that since element of payment of sale consideration was lacking in the transactions of exchange brought about by mutations No.9886 and 9956 omitted to lake into consideration the factual aspects of the case alluded to above, namely, that sale consideration did pass hands between Maidullah Khan and Tcri Khan respondent through different hands but the end result was the same.
11. The learned counsel for the respondents had further maintained that there was ample authority for the proposition that transactions of exchange and gift were the legitimate devices to defeat the right of pre-emption and, therefore, no illegality had been committed by them by resorting to this device. There is no cavil with this broad proposition. None theless, it has to be viewed in true factual background of all those cases in which this principle was laid down. As pointed out, earljer in the transactions scrutinised in the authoritative pronouncement cited at the bar on behalf of the respondents, not only the payment of sale consideration was lacking, but also that the land in dispute was proved to have been exchanged with another land of transferee. At the cost of repetition, I would emphasis that Maidullah Khan respondent within the period of one year specified under section 31 of the N.W.F.P. Pre-emption Act, 1950 (XIV of 1950) was not left with even the land of 7 kanals and 15 marlas out of Khata No.343 which he had purportedly got in lieu of that much land in dispute out of Khata No.525 and 526.1 am, therefore, constrained to hold that the to Courts below have arrived at the conclusions by omitting to consider the glaring circumstantial evidence that in the disputed transactions of exchange, the element of mutual transfer of ownership of lands between Maidullah and Teri Khan within meaning the of section 118 of the Transfer of Property Act, 1882 was missing and that indirect payment of sale considration to Maidullah Khan through mutations Nos. 9888 and 9892 within the purview of section 54 of the Act aforesaid was available. The conclusions arrived at by the Courts below were thus the result of mis-reading and non-reading of evidence.
12. In this context, it is also noteworthy that the old view that the right of pre-emption is practical right or that it tends to create serious inroad on the right to a free disposition of property has remained a guiding principle in defeating the pre-emptive rights by the devices of so-called exchanges and gifts. The legal proposition that notwithstanding its ostensible predatory or piratical nature, the right of pre-emption had its genesis in Islam was very aptly elucidated by Muhammad Afzal Chccma, J., as his Lordship then was, in Siddique Khan V. Shakur Khan (PLD 1984 SC 289) in the following paragraph:- "It may be observed that the reason for applying such strict rule of interpretation in some cases of pre-emption so as to have recourse to section 3 of the Limitation Act instead of proper application of Order VII, rule 11(b) and (c) or for that matter sections 148 and 149, CPC and section 28 of the Court Fees Act, was the then prevailing notice that right of pre-emption was predatory. This view suffered considerable change in post-partition period in Pakistan. One reason being that it was against Islamic Jurispurdcnce wherein this is a right as much enforceable as any other right and further that it has a connection with the law of inheritance in Islam as wa% observed by Mahmood, J. In (iobind Dayal V. Inayatullah (ILR 7 ALL. 775) at 782 as follows:- "Upon the present occasion it is unnecessary to consider whether "gift" can properly be described as a "religious usage or institution" within the meaning of section 24.1 am here concerned only with the question whether pre-emption can be so described. My own opinion is that it can, and although I cannot add much to the reasons given by Spankle, . I may observe that pre-emption is closely related with the Muhammadan Law of Inheritance. That law was founded by the Prophet upon republieation principles, at a the when the modern democratic conception of equality and division of property was unknown even in the most advanced countries of Europe".
This Court has also adopted the rule that a pre-emptor cannot be disallowed a relief or prayer on account of any such like notion. See Allah Ditta V. Muhammad Ali (PLD 1972 SC 59 and Hadayat UllayhV. Murad Ali Khan (PLD 1972 SC 69). Similarly, the approach in this behalf in a recent case Jan Muhammad V. Shukeruddin (1980 CLC 186) , is to the same effect. Thus it would be no more lawful to deprive a plaintiff or appellant of any relief simply because it happens to be a pre-emption matter. The law as it is, has to be applied without any such consideration. Otherwise it would, besides other consequences, also negate the relevant (Article 31) principle of policy contained in the Constitution, which is not permissible".
13. Judged in this perspective also, I am of the view that the notion that right of pre-emption is piratical or predatory or tends to create serious inroads oh the right to a free disposition of immovable property has undergone a noticeable change and it is now settled that it owes its origin in Islamic Law. Viewed in this perspective to, the circuitious devices like those which were employed in this case to defeat the right of pre-emption cannot be sustained.
14. It has been vehemently argued on behalf of the respondents that the learned lower Courts have recorded concurrent findings on the question of fact that the mutations evidencing the transactions of exchange were not of sale and this finding cannot be interfered with by this Court in the exercise of its revisional jurisdiction. This contention convased at the bar is undoubtedly settled.
Finding of fact ordinarily cannot be re-opened at the revisional stage but there is abundant authority for the proposit on that where such finding was based on mis-reading or non-reading of evidence or irrelevant considerationl High Court would be competent to revise the same. In the instant case, I have already observed the findings of the to Courts below was the outcome of mis- reading and non-reading of evidence and, therefore, this Court would be competent to revise the same.
15. In the circumstances discussed above, it is obvious that the to Courts below have arrived at the conclusion by mis-reading the evidence on the crucial question of true nature of various transactions brought by mutations No.9886, 9888, 9956 and that mutation No.9888 attested on 17- 6-1978 was of exchange. I have already elaborately noticed the circuitous method through which the land had virtually been mutated in the name of defendant-respondent No.3, which was, by itself, sufficient to dislodge the presumption that the transactions were of exchange.
16. Since both the Courts below have not discussed issues No.7 and 8, therefore, by aforesaid findings, these issues are being disposed of by me. Although there is no evidence on the actual payment of sale consideration of Rs.23,000/- and the mortgage charge of Rs.15,000/-, nonetheless, the market value of the suit land, both on five years average price and one year average exceeds to that which has been admitted by the vendees/respondents. I must, therefore, hold that the market value of the suit land being more than the admitted price of the suit land, the pre-emptor- petitioner would be liable to pay the price of P.s.25,000/- plus Rs. 15,000/- evidencing the mortgage charge and would then be entitled to the decree for possession by pre-emption of the land in dispute.
17. For the alorcdiscussed reasons, the judgments and decrees passed by the to Courts below, suffering from serious illegalities and material irregularities by mis-reading /non-reading of evidence, as they are, and resulting in mis-carriage of justice, are set aside. Consequently, the suit of the pelilioner-pre-emptor is decreed on payment of Rs.40,000/. The petitioner pre-emplor is directed to deposit the balance pre-emption money within three months from today, failing which his suit shall be deemed to have been dismissed with costs.