1. ' MUHAMMAD AFZAL ZULLAH, C.J.---This appeal through leave of the Court has arisen out of a pre- emption matter. Order for grant of leave to appeal contains all the facts and points for examination. It reads as under: "Baqi Jan and his brother plaintiffs, now petitioners, brought a suit against the respondents for a declaration that land measuring 288 Kanals and 17 Marlas situate in village Daulat Tajazai, Tehsil Lakki, District Bannu, had been purchased by them from Mst. Akbar Jehan Begum, respondent No,6 and as such they were owners of the land in question; that the Exchange Mutations Nos.7775 and 7776 attested on 30-6-1972 and Sale Mutations Nos.7777 and 7778 attested on 30-6-1972 and Mutation No, 7841 attested on 15-7-1973 were fictitious, fraudulent and not binding on the rights of the petitioners. In the alternative a declaration was sought that the Exchange Mutation No, 7775 was in fact a Sale Mutation. In prayer the petitioners sought for a decree of possession by pre-emption of the suit land measuring 288 kanals and 16 marlas on payment of a sum of Rs,20,000.
2. "In the plaint it was further averred that the suit property belonged to the Central Government which was transferred to Mst. Akbar Jehan Begum, respondent No,6, on payment of thirty instalments and that the said Mst. Akbar Jehan Begum through her general attorney and her husband Tanzimul Haq had promised to sell the suit property to the petitioner.. Thus, the petitioner had paid the amount to her and even the last instalment deposited in the treasury; that when respondent No,6 was approached for the transfer of the suit land, she pretended that due to MLR 115 there was a ban on the transfer of the suit property but later on the petitioners came to know that the. Said respondent had sold the land to Haji Mama Khel, respondent No,1 and others. In order to defeat the pre-emptive right of the petitioners, an Exchange Mutation No, 7775 to the extent of 6 Kanals 3 Marlas which was in fact a sale, was got attested on 30-6-1972 alongwith the Sale Mutations Nos. 7777 and 7778 in favour of respondents Nos.3 to 5; that Ayaz Khan, respondent No,5 in turn transferred the area obtained by way of alleged exchange as per Mutation No,7776 attested on 30-6-1972 in, favour of Quli Khan son of Suran.
3. "The suit was contested as a result of which a number of issues were framed of which issues No,6, 7 and 8 are relevant. They are: "6. Whether the plaintiffs are owners of the suit property as mentioned in the heading of the plaint by purchase and on payment of consideration to the husband of defendant No,2 as such the Mutations in favour of defendants Nos.3 to 5 and 7 are wrong, illegal and ineffective on the rights of the plaintiffs?
7. Whether Mutation No, 7775 dated 30-6-1972 is of sale and not an exchange, hence pre-emptible?
8. Whether the plaintiffs have got superior right, of pre-emption and entitled to. The possession of the suit land in the alternative relief `Bay'?
4. ' The trial Court after recording the evidence of the parties dismissed the suit as per judgment dated 1-11-1974. On appeal by the petitioners, the District Judge, Bannu vide his judgment, dated 2- 2-1985 set aside the judgment and decree of the trial Court and allowed the appeal. The respondents then approached the High Court through a revision petition which was accepted and the suit of the petitioners dismissed.
5. ' We have heard the learned counsel for the petitioners and have gone through the relevant record.
6. Learned counsel for the petitioners has vehemently contended that the learned Judge of the High Court has misread the evidence in that as per the Revenue Record the alleged exchange of land has not been acted upon as the possession of the land exchanged has not been delivered to the vendor and, secondly, Abdur Rahman, who for all intents and purposes is an independent witness, has in his statement at the trial in categorical words deposed that the land in dispute was sold and the sale consideration changed hands in his presence. In view of his evidence, the learned counsel submitted that the transaction in fact is a sale and the learned first appellate Court has rightly held it so and decreed the suit of the petitioners."
7. ' As is clear from the facts of this case reiterated and narrated at the Bar from both sides that two main points are involved now in this appeal. One, whether the transaction in dispute which, if accepted to be sale, would furnish a ground for pre-emption to the appellants. If held otherwise, as claimed from the respondents' side, the appellants' appeal would fail. Thus the first question involved in this case is one of fact. It is true that it was decided by the trial Court that the transaction in question was not sale but the first appeal Court treated it as sale. The High Court, however, in revision restored the judgment of the trial Court and dismissed the appellants' suit. The second question is of law; namely, in case it is confirmed that the transaction in question was not a sale but was an exchange intentionally and really entered into between the parties thereto so as to defeat a future suit for pre-emption, was it permissible under the then prevailing law.
8. ' We have examined the two features noted in the leave grant order so as to re-assess the finding by the High Court regarding the transaction being exchange or sale by going through the evidence with the help of the learned counsel. The High Court reproduced the following part of the appellate judgment which was in favour of the appellant/pre-emptors' side:- "The 'statement of patwari and the Revenue Record show that no possession has been deliverd to Mst. Akbar Jehan Begum of the area which was given to her in exchange so although the parties have adopted the method of device i.e, exchange but that device has not been acted upon in accordance with law and in these circumstances as no possession has been transferred to the vendor, no exchange has taken place and exchange mutation was in fact a sale mutation."
9. ' On this the High Court observed that it was manifest that the learned Appellate Court admitted that the parties had adopted the method of device.
10. ' However, since the device had not been acted upon by delivery of possession it was in fact a sale transaction. Thus the High Court further noticed that the finding is due to the fact that it escaped the notice of the appellate Court that a portion of the joint land had been exchanged and the land was not susceptible of delivery of physical possession without partition by metes and bounds. It being so the question of actual possession in the exchange was of no significance and would not per se bring transaction under a cloud of doubt. The finding of the learned trial Court, therefore, was considered as unexceptionable.
11. ' After noticing the fact that the vendor in this case was no more interested in keeping any piece of land as she was resident of a very far-off place, it was genuinely agreed between those parties that the pre-emption may be avoided through a lawful device. In that context we agree with the High Court that the question of possession of the exchange land would become insignificant. The vendor, it further seems rational, would not like to lose benefit of transaction by insisting upon the delivery of the possession under disputed exchange transaction. She might as well have been compensated for this small disadvantage in obtaining proper consideration in the other main transaction. Thus in a way it appears that the question of alleged vendor and the vendee having genuinely entered into an exchange so as to furnish device for preventing a suit for pre-emption is not much in dispute. All the three Courts held that it was a device in the said direction. The question of possession, as already observed, is of no significance in this context nor the statement of Abdur Rehman relied upon from the appellants' side at the time of grant of leave to appeal would make any difference in regard to the said assessment of the transaction being an exchange, and, that too so as to furnish a device to avoid pre-emption.
12. ' The next question arises; as to whether, such a device, provided the actual transaction is of exchange and is not a disguise or fabrication or forgery, is permissible as a legitimate ground to avoid pre-emption. There is no dearth of case-law that such a genuine device is permissible. See amongst others Jabir Ali v. Qurban Ali 1986 SCM R 524 at 528 and Abdul Wahid v. Mst. Zamrut PLD 1967 SC 153 at 159.
13. ' Learned counsel from both sides agreed on this proposition by making a statement that there is considerable case-law on this subject. Learned counsel for the respondents side also asserted that the said trend of case-law in Pakistan and Pre-partition precedent law has, for its basis, considerable support in the Muslim Law of Pre-emption. He relied on page 220 para 247 of D.F.
14. Mulla's Muslim Law, Fifteenth Edition on this subject; and also, Saksena on Muslim Law, Third Edition page 6% under: "SECTION 7. DEVICES FOR EVADING PRE-EMPTION"
15. ' It needs to be noticed that in para 247 D.F. Mulla has further noticed "Hedaya, 563; Baillie 512 et seq". Considerable case-law has been examined by the two learned authors. Saksena at pages 696 and 697 gave about a dozen examples where, according to him, the aforementioned devices have been found in the accepted Texts. They are Baillie and Hedaya. He has also added Tayabji Muslim Law.
16. ' We may further add that the Muslim Law of Pre-emption by Al-Haj Mohomed Ullah ibn Sher Jung "with Original Arabic Text and Translation from Kitab-Al-Shufa of Fatawa-i-Alamgiri and Fatawa-i- Kazee Khan" dealt with the subject on device and disguise or for that matter fabrication and disguise in an extensive survey of cases; and large number whereof, were treated as of legitimate device and pre-emption was not allowed. While in others wherein fabrication or disguise or forgery were visible in a pronounced manner, the pre-emption was allowed. The learned author referred to at page 40 under para 39 (under Note 99 ''Baillie Part-I, pages 511 to 514; Sircar, T.L.L. (1873), page 540; Hamilton's Hedaya, Volume III, page 604; Hedaya (Grady), page 563; Wilson, 404; Ameer Ali, Volume. I, page 736; Tyabji, page 724; Agarwala, page 146; Dayal, page 398".
17. This Court as explained in the case already noted of Abdul Wahid; wherein even a finding of fact on fraud and/or disguise rendered by the High Court were set aside, accepted the view that it is permissible to adopt a legitimate device.
18. ' In the light of the foregoing discussion, it having already been held that the device in this case was neither a disguise nor fabrication and it was a genuine legitimate device which is permitted under the prevalent law, no justification has been made out for interference. This appeal is dismissed.
19. There shall be no order as to costs.