This is a regular second, appeal by the aggrieved defendant. The suit of the plaintiff-respondent No. 1 against him and others was dismissed by the trial Court. But the decree was reversed on appeal accepted by the District Judge, D. G. Khan on the 20th of April 1960. Hence this regular second appeal before me.
2. On the 17th of January 1959 Mst. Khanzadi, plaintiff-respondent No. 1 brought the suit, out of which this appeal has arisen, against Ata Muhammad and others for possession of the land measuring 64 kanals 12 marlas fully described in the plaint, situated in the estate of Fazalpur, Tehsil Rajanpur, District D. G. Khan, by pre-emption on payment of Rs. 14()0 only. It was alleged in the paint that by means of two mutations Nos. 1782 and 1783 sanctioned on the 12th of December 1957 the land ire suit was in reality sold for Rs. 1400 by Faiz Muhammad defendant No. 1 in favour of Ata Muhammad Khan, defendant No. 2 appellant. But that in order to defeat her right of pre-emption the transaction was given the guise of an exchange whereby Faiz Muhammad, defendant No. 1 ostensibly purported to transfer the land in suit measuring 64 kanals 12 marlas, situated on Cbah Ghasoorawala and Chah Chhatawala, to Ata Muhammad Khan, defendant No. 2 appellant in lieu of the land measuring 30 kanals 9 marlas. situated on the Chah Ramchandwala, Chah Chatolwala and Chah Babarwala received in return from him. The plaintiff asserted that as a real sister of the vendor, she had a superior right to acquire the land in suit by pre-emption as compared to the vendee. The plaintiff also impleaded Muhammad Salam, defendant-respondent No. 3 as a rival pre-emptor in the suit. Defendants Nos. 1 and 2 denied these allegations, contested the suit of the plaintiff and asserted that the transaction in suit was a bona fide exchange of the land entered between them and was not pre-emptiable under the law.
3. The pleadings of the parties gave rise to the usual issues framed by the trial Court. But the main issue forming the bone of contention between the parties was as to whether the transaction in suit was a sale and not an exchange. After recording the evidence adduced by the parties, the learned Civil Judge, Rajanpur, on the 22nd of July 1959 dismissed the suit of the plaintiff-respondent No. 1 on the finding that the transaction in suit was an exchange and not a sale pre-emptiable under the law. But this finding was reversed on appeal of the plaintiff accepted by the District Judge, D. G.
Khan on the 20th of April 1960. He was of the opinion that the transaction in suit was proved to be a sale and not an exchange, which was pre-emptiable under the law. He, therefore, passed a decree for possession of the land in suit by pre-emption on payment of Rs. 1,400. Hence this regular second appeal before me by the aggrieved defendant No. 2.
4. It may be mentioned at the outset that Muhammad Salam,, defendant No. 3, the rival pre- emptor did not appeal against the decree passed by the trial Court and is no longer in the picture for all practical purposes.
5. In order to establish that the transaction in suit was in reality a sale and not an exchange, the plaintiff-respondent No. 1 produced for witnesses. P. W. 1, Gul Muhammad is living on Chah Ghasoorawala. He deposed that Ata Muhammad had purchased the land in suit from Faiz Muhammad for Rs. 1,400 paid through him. At the time Ata Muhammad stated that the vendor would give the guise of an exchange to the transaction with a view to ward off the pre-emptors.
From the cross-examination of the witness it transpires that he is a step-brother of the husband of the plaintiff. Ho' was bound down for keeping peace against defendant Faiz Muhammad and was also living with the plaintiff's husband. P. W. 2, Essa at first stated that the land in dispute was given in exchange and not by way of sale to Ata Muhammad. But then be again stated that Ata ~Muhammad had paid Rs. 1,400 to Faiz Muhammad vendor for this land. He! Did not know as to why the transaction was given a guise of exchange and no talk to this effect took place between the parties in his presence. From the cross-examination of the witness it transpires that he had intimate relations with the relatives of the plaintiff and stood surety for bet uncle in a case initiated by Faiz Muhammad, defendant No. 1. P. W. 3, Bukhsh is a beggar by profession and deposed as to the payment= of the sale price of the land in his presence. In his cross-examination he stated that be had gone there at the time merely for beggary. P. W. 4, Ghulam Qadir is the husband and special attorney of the plaintiff. He did not have any personal knowledge about the transaction and only learnt' about the exact nature of this transaction from Gul Muhammad.
6. In rebuttal D. W. 1, Muhammad Salam defendant No. 3 appeared as his own witness to support the plaintiff's version. In his cross-examination he deposed that the Government had assessed the value of the land on the well in question at the rate of Rs. 890 per Bigha. He admitted that the land in suit was under mortgage with one Faiz Muhammad Khoja. The contesting defendants in all produced for witnesses in rebuttal, iii support of their contention to the effect that the transaction in suit was an exchange and not a sale. D. W. 2, Syed Manzoor Hussain in his cross-examination deposed that Ata Muhammad defendant gave 7J Bighas of land to FaizMuhammad in exchange for 16 Bighas of land received by him on Chah-Ghasoorawala at one place. But that the land given by Ata Muhammad to defendant No. 1 was situated on three different wells, namely, Babarwala, Chatolewala and Ramchandwala. According to this witness Chah Babarwal& was situated at a distance of li miles to the north from Fazalpur Town. He admitted that Chah Ghasoorawala was situated on both sides of the Pacca road contiguous to the Town of Fazalpur. He further stated that he had sold his own land contiguous to the Town of Fazalpur at the rate of Rs. 19 per marls: D. W. 4 Mian Faiz Muhammad Khoja deposed that the father of defendant No. 1 had mortgaged the land in suit with him. The mortgage was for a fixed period ending in the year 1963 and the principal money advanced was Rs. 400 only. According to this witness Chah Chatolwalw was situated at a distance of about J mile from Fazalpur Town and was adjacent to Chah Ram Chandwala. The new Abadi of Fazalpur Town was-- situated on Chah Ghasoorawala on both sides of the road for D. G. Khan. D. W.
5 is Faiz Muhammad, defendant No. 1 who appeared as his own witness and admitted that the plaintiff was his sister and that defendant No. 1, was also related to him. He stated that he had inimical relations with the husband of the plaintiff and defendant No. 3 and that at their instance he was bound down as a surety and that because of this he entered into the exchange of the land in dispute with Ata Muhammad and did not receive any cash consideration for the transfer. He explained that he got a lesser area of the land in exchange in lieu of a greater area transferred by him for the reason that he was fed up and the land in suit was also under mortgage. In-- his cross- examination the witness stated that, his relations got strained with the husband of the plaintiff and defendant No. 3 for the past 1J years from the time of the exchange. He admitted that he had still about five bighas of land belonging to him at Chah Ghasoorawala. He did not know the area of the land situated at Chah Babarwala received by virtue of the exchange. lHe stated that he had received one Chhoat of wheat as his share of the produce . For the land at this well and two Chhoats of wheat from Chatolwala and Ram Chandwala each as his share of the produce. He was not able to name his other co-sharers in the land situated at Chah Babarwala or Chah Chatolwala.
He did not know the extent of his share in the land situated at Chah Chatolwala. His evidence shows that he had still to take possession of the land taken in exchange. He further admitted that he bas filed a suit for possession of the land situated on Chah Ghasoorawala against Gul Muhammad and in that connection deposited Rs. 3,000 in Court D. W. 6, Ata Muhammad also appeared as his own witness in support or his case.
7. In dismissing the suit of the plaintiff the trial Court was not impressed with the evidence produced by the plaintiff. In this connection he observed that Gul Mnhammad (P. W. 11 is the brother of the plaintiff's husband and was living with him. He was also bound down for keeping peace against the defendant, Faiz Muhammad Essa (P. W. 2) had intimate relations with the relatives of the plaintiff and stood surety for her uncle in a case instituted by defendant No 1. He could not tell the reason when the transaction in suit was settled Bukbsh (P. W. 3) is a beggar and thrives on beggary. He had no fixed abode and was moving from place to place. In the opinion of the Court it was quite unusual that the two contracting parties should have allowed beggar to participate in their dealing. Ghulam Qadir (P. W.) is the plaintiff's husband and was admittedly not present at the time of the transaction. In the opinion of the learned Civil Judge the evidence of the P. Ws. Was discrepant, they were interested in the plaintiff and were of low veracity. On the other band, in the opinion of the trial Court the witnesses produced by the contes--ting defendants were disinterested persons and they consistently deposed that the suit land was given in exchange to Ata Muhammad, defendant.
8. On the other hand, in accepting the appeal before him the learned District Judge has relied on the evidence of the plaintiff's witnesses. In this connection he observed "There is overwhelming evidence on record that a sum of Rs. 1,400 had actually been paid by Ata Muhammad defendant vendee to Faiz Muhammad defendant vendor through Gul Mohammad P.
W. 1 a cousin of the vendor. The passing of the consideration is further testified by the evidence of Isa P. W. 2, Bukhsh P. W. 3 and Ghulam Qadir P. W. 4."
He was also impressed by the circumstance that there was a vast difference in the area of the land in suit alleged to have been given m exchange. It was also of superior quality and value as compared to the one allegedly received by defendant No. 1 in exchange. But the land on Chah Ghasoorawala given in exchange was encumbered. In that connection the learned District Judge observed that the land had been leased out to Faiz Muhammad Khoja (D. W. 4) in 1943-44 for Rs.
400 only, but the lease was to expire in the near future in 1963. In that context the learned District Judge remarked that .- "If this fact would have some importance it would have been entered in column No. 13 of the two mutations with express intention."
He further observed in his judgment that :- "As the transaction in question was oral and was entered by the Patwari on 6-12-1957 there was no need to ante-date it to have been taken place on 14-10-19;7. This fact makes the entire dealings suspicious which clearly suggests the alleged hiding of the true intentions of the parties to the transaction. This suggestion is further strengthened by the admission of Mohammad Salam defendant No. 3 (as D. W. 1) that the land in sua has been actually sold and that the exchange in question is fictitious."
The learned .District Judge in arriving at the conclusion to the effect that the transaction in dispute was a sale and not an exchange, also relied on a number of other circumstances enumerated by him in his judgment.
9. Before me the learned counsel for the contesting respondents vehemently argued that this finding recorded by the District Judge to the effect that the transaction in dispute was. In fact, a sale and not an exchange, is a finding of fact which must be treated as binding on the parties in this second appeal. In this connection the learned counsel also pointedly relied on an order dated the 26th of October 1960 passed by late Shabbir Ahmad, J. in limine. While admitting this appeal to a full hearing be remarked that "the point whether the transaction was a sale or not is concluded by the -finding of fact." The learned counsel, therefore, stressed hard to contend -that this issue cannot be allowed to be reagitated now at this stage.
10. But in this connection the learned counsel for the appellant submitted that this ex gratis observation made at the time of the admission of the appeal was not at all binding on the appellant and that it was still open to him to reagitate this matter in issue before me at the final hearing of the arguments in the appeal... In this connection the learned counsel for the appellant relied on Rekha Thakur v. Rarnnandan R.I and another (AIR 1936 Pat. 7) which supports him. This lays down that there is no provision in the Code of Civil Procedure enabling the Court of Appeal to pass an order partly admitting and partly dismissing the appeal and in the present state of law it must be held that an appeal cannot be admitted on a limited ground but as a whole. Similarly in Kriehnaji Shrinivas Jalvadi v. Madhusa Apansa Ladaba (AIR 1934 Bom. 207), a Full Bench of the Bombay High Court held that it was not open to a Judge hearing an appeal under rule 11, O. 41 to admit that and at the same time to restrict the grounds on which the appeal was to be heard. The learned counsel for the respondent was unable to cite any relevant law to the contrary. Therefore in my opinion the appellant was not altogether precluded from contending before me that the alienation in dispute was not a sale but an exchange.
11. The learned counsel for the respondent then raised the objection that the finding by the lower Appellate Court to the effect that the alienation in dispute was a sale and not an exchange, was a finding of fact binding in this second appeal. In support of his contention the learned counsel relied on Allah Dad v. Bagh Ali and another (PLD 1968 Lah. 428), to the effect that a question relating to the true nature of a transaction whether a sale or an exchange is a question of fact. Similarly the Supreme Court of Pakistan in Pir Walayat Shah v. .Muhammad Shafi and others (PLD 1968 SC 1304), held that the finding whether the transaction was a sale or an exchange was a finding of fact. Also in, Muhammad Azim3 Khan v. Mst. Muqaisha and another (PLD 1968 Pesh. 120), the Court held that the concurrent findings of Courts below in matter of pre-emption that a gift was in fact sale, could not be disturbed in second appeal, even though erroneous. In, support of the general proposition the learned counsel also relied on two reported cases of the Privy Council in Venkata Kunrara Mahipati Suryarao Bahadur Garu v. Secretary of State (AIR 1929 P C 152) and Ramji Patel v.
Rao Kishore Singh (AIR 1929 P C 190),. to the effect that under the Code of Civil Procedure no; second appeal will lie except on the grounds specified in section 100 and an erroneous finding of fact is a different thing from an error or defect in procedure and there is no jurisdiction to entertain a second appeal on the ground of erroneous finding. Of fact, however gross or inexcusable the error may seems to be.
12. I respectfully agree with the broad proposition that according to the preponderance of the authorities and in general a finding as to the nature of a transaction whether an exchange or sale is a finding of fact and no second appeal against it is competent except on the grounds mentioned in section 1 of the Code. But on going through the facts in this case I find that in his judgment the learned District Judge while referring to the evidence of Faiz Muhammad Kohja (D. W. 4) observed that the land in suit was leased out t him in the year 1943-44 at Rs. 400 only and that the agreement was end in the near future in the year 1953 without consideration. In that context the learned District Judge proceeded further to make the observation reproduced in para. 8 above. As to what was precisely meant by them it is not easy to say. At any rate, there is no warrant in law for these observations made by him in his judgment under appeal. The learned District Judge also observed at an other place that :- "As the transaction in question was oral and was entered by the Patwa on 6-12-1957 there was no need to ante date it to have been taken place on 14-10-1957. This fact makes the entire dealings suspicious which clearly suggests the alleged hiding of the true intentions of the parties to the transaction."
In the two mutations the date of the oral transaction in suit is mentioned a 14-10-1957 and a report to that effect was no doubt made with the Patwai on 6-12-1957. But the above inference drawn from this solitary circumstance is highly conjectural and is not based on any evidence. In coming to this conclusion the learned District Judge also relied on the "admission of Muhammad Salam.
Defendant No. 3 as D. W. 1" that the land in suit was actually sold and the exchange in question was fictitious. Tie deposed that the land was in fact sold for Rs. 1400. It may be noticed that Muhammad Salam defendant No. 3 was rival pre-emptor and his case all along was that the transaction in suit was a sale and not an exchange. Therefore, this admission in his own favour by Muhammad Salam could not have heen used against the contesting defendant so as to bind him. In this connection it further appear that although the learned trial Court bad rejected the evidence of the plaintiff's witnesses as interested and unreliable, but the learned District Judge accepted their testimony without any discussion. It was at least expected of the learned District Judge to have discussed and scrutinised their testimony in the light of the observations made by the trial Court and then accepted the same. For all these reasons it appears to me that the finding reached by the learned District Judge to the effect that the transaction in question was a sale was vitiated by these errors and cannot be treated as sacrosanct in this second appeal.
12. I have, therefore, decided to examine the evidence adduced by the parties afresh to arrive at my own independent conclusions. Gul Muhammad (P. W. 1) is a step-brother of the husband of the respondent and also living with him. He was bound down for keeping peace against the defendant.
Essa (P. W. 2) has intimate relations with the plaintiff and stood surety for her uncle in a case initiated by Faiz Muhammad, defendant. Bukhsh P. W. 3, is a beggar and could not be expected to have witnessed the negotiations resulting in finalization of this transaction. This evidence adduced by the plaintiff standing by itself is interested and not worthy of much credit. On the other hand the evidence produced by the defendants too does not inspire confidence. In spite of this finding there are other circumstances elaborately enumerated as items Nos. (1) to (13) by the learned District Judge in his judgment under appeal to warrant a conclusion to the effect that the transaction in dispute was a sale and not an exchange. There was a great disparity in the area and the value of the land in suit allegedly given in exchange by Faiz Muhammad defendant as compared to the land received by him. He gave 64 kanals 12 marlas of the land in suit situated at Chah Ghasoorawala and Chah Chotolwala and is said to have received 30 kanals 9 marlas of land situated on Chah Ramchandwala and Chah Chatolwala and Chah Babarwala in return. The land situated at Chah Ghasoorawala was quite compact and adjacent to the Fazalpur town lying on both sides of the main road. In fact according to the evidence the new Abadi of Fazalpur town was situated in the area of Chah Ghasoorawala itself. The land received in return situated on Chah Ramchandwala and Chah Chatolwala was at a distance of I mile from Fazilpur town and Chah Babarwala was still farther off. It transpired from the evidence that the land at Chah Ghasoorawala was very valuable. The official price for acquisition of the land by the Government was stated to be Rs. 800 per bigha. On the other hand according to Faiz Muhammad he got about 10 maunds wheat only from the three pieces of the land received in exchange. It cannot be denied that the land in suit situated on Chah Ghasoorwala was under mortgage for a paltry sum of Rs. 400 only. But that solitary circumstance was not sufficient to neutralize this great disparity in the values of the twn lands. Faia Muhammad defendant stated that he had inimical relations with his kith and kin and, therefore, he wanted to get rid of his land in suit, which he gave in exchange. But this was hardly any reason to enter upon this exchange for he has still about 5 bighas of land at Chah Ghasoorawala. He also filed a suit for another piece of land on the same well for which he deposited Rs. 3,000 in Court. It also appears from his evidence that he did not take possession of the land allegedly received in exchange and confessed that he has still to take possession of the area. He even did not know much about the particulars of the land given to him in exchange situated on Chah Chatolwala. He did not know who were his other co-sharers on this well nor even the area of the land that had fallen to his share. All these circumstances lend ample corroboration to the oral evidence produced by the plaintiff to warrant the conclusion that the real nature of the transaction in dispute was a sale and not an exchange. This appeal has, therefore, no force and is liable to be dismissed.
13. For the foregoing reasons I dismiss this appeal with costs.