Ghulam Hussain, defendant, herein the appellant, owned the agricultural land measuring 33 Kanals and 10 Marlas bearing Khasra No. 43 whereas Muhammad Afzal owned 74 Kanals of land in Khata No. 31 of village Thul Khair Muhammad. Vide Mutation No. 396 (Exh. P.1) sanctioned on the 25th of March, 1970, the appellant and Muhammad Afzal exchanged their lands with each other. The same day another Mutation No. 397 (Exh. P.2) was attested indicating that Muhammad Afzal had sold the land acquired by him through exchange to Mahmood and Allah Dawaia for Rs.10,468.75. Mst. Meraj Bibi, plaintiff, herein the respondent, as sister of the vendor Muhammad Afzal pre-empted this sale on the 12th of March, 1971 averring that in fact Muhammad Afzal had sold the land to the appellant though the transaction was given the colour of an exchange to ward off pre-emption. This suit was resisted by the appellant who defended the transaction as an exchange and, therefore, not pre- emptiable.
2. The parties were put to trial on as many as seven issues but the contest before the appellate Court and this Court centered round the following two issues:--- Issues:
(1) Whether the impugned transaction is sale and is pre-emptiable? OPP.
(5) Whether the land in suit was purchased by the defendant No. 1 for Rs.10,468.59? OPP.
3. Both these issues were answered in favour of the appellant by the learned trial Court but the verdict thereon was reversed by the learned Court below in appeal. This judgment passed on the 2nd of February, 1977 is challenged in this second appeal.
4. At the outset of the arguments, the learned counsel for the respondent raised objection to maintainability of the appeal on the ground that since the question whether the transaction was a sale or exchange, essentially involved question of fact, therefore, the finding of the learned Additional District Judge .Could not be questioned in second appeal. He relied upon Ata Muhammad Khan's case reported at 1976 SCMR 104. In the cited ruling the 'District Judge and the High Court had rendered concurrent finding that transaction was a sale and no misreading of relevant evidence was discovered, therefore, the Supreme Court did not interfere with the decisions. The ratio of this authority cannot be pressed into service to non-suit the appellant for the reasons; first that here the judgments of both the Courts below are at variance and secondly the evidence and the law on the subject were not examined by the learned Court below in its true perspective. Only concurrent findings of fact and that too based on proper conclusion do not warrant interference in the second appeal. Reliance is placed on Shah Muhammad's case cited at 1988 SCMR 113 and Hafiz Ahmad v. Shakila Begum (1988 SCMR 72).
5. .It is a common ground that the impugned transaction is depicted as exchange by Mutation No. 396 (Exh. P.1). It need not be gainsaid that a transaction has to be taken on its face value unless it is shown by some cogent evidence that the nature of transaction was in fact not what was recorded in the document. The evidence produced by the pre-emptor/respondent on the subject is highly deficient to establish that the impugned transaction was an exchange and not a sale. While appearing as P.W.1 the respondent had reiterated the allegations set out in the plaint that the land was in fact sold for Rs.10,468.75 and no exchange has taken place and that the land was sold away to Allah Dawaia and Mehmood Khan the same day it was got in exchange and further that Muhammad Afzal had no need to exchange the land. The lady, however, was admittedly not present at the time of payment of consideration. Further she made important admissions in cross- examination: "I was not present at the time of mutation for exchange. Mehmood Khan, Allah Dawaia are in possession of the land they had purchased."
She further admitted that the land which was given to Muhammad Afzal had a well and a garden.
Muhammad Afzal no doubt corroborated the version of the respondent but he being her real brother, no premium could be given on his evidence especially when he gave the statement contrary to the contents of the transaction recorded in mutation of exchange to which he was the party. Further he contradicted the respondent by saying that the appellant was still in possession of the property sold by him fictitiously in favour of Allah Dawaia and Mehmood Khan. The respondent's admission, reproduced supra, is to the contrary. The only other witness who supported the case of the respondent is Rasool Bakhsh. The appellant, therefore, cannot be said to have discharged the heavy onus which lay upon her to prove that transaction was exchange and not sale and that a consideration in cash had passed for the property, because the consideration cash is a sine qua none for making a transaction of sale.
6. The learned counsel for the respondent has referred me forte decision of the Peshawar High Court, Faqir Shah and others v. Khalo Khan and others (PLD 1951 Peshawar 14) wherein the transaction under the cloak of exchange we held to be a sale. But so because in that case 'the land was subsequently sold to servant of the vendor, the possession of that property in spite of exchange and subsequent sale, continued with the vendor (Muhammad Shah) and lastly there was obvious disparity between the value of the lands which had been exchanged with each other.
In the instant case all the said factors do not exist to give inference that the transaction in fact was sale and not exchange. Here the respondent had admitted that the possession was with, Mehmood Khan and Allah. Dawaia, the vendees which means that transaction was not sham. The disparity between the land was adequately explained by the appellant by saying that his land, though less in area, had two wells and a garden whereas the land he had received in exchange, though larger in area, had a Kallar and, therefore, the value of both the land came up to be almost equal. The mere fact that the transactions in question were mutated the same day would not necessarily justify an inference of collusion between the parties concerned and. That at the most it can be said the device of exchange was employed to defeat the pre-emption suit. So was held by the Peshawar High Court in Re: Muhammad Amin v. Ghulam Yasin (PLD 1983 Peshawar 13). Learned counsel for -the appellant also sought support from the Supreme Court's decision in Sher Azam v.
Fazle Azim Shah (1972 SCMR 649). In the said case several circumstances were brought out in evidence to show that the transaction was one of exchange, namely:---
(a) that Fazle Azim Shah, who had exchanged his land with that of Ikramuddin was in possession of both the properties giving inference that he had in fact purchased the land in suit as he had not parted with his own land in exchange;
(b) that there was a difference not only in the area of the property said to have been exchanged but also in quality; and
(c) that the attorney of the vendee refused to accept the petitioner's offer of the special oath as regard the nature of the transaction.
The Supreme Court still did not consider the said circumstances worth nullifying the transaction which was in fact an exchange and not a sale, with the following. Conclusion:--- "The Courts below have rightly observed that for a transaction to be a sale it is necessary that price in cash must have been paid for the thing sold, and that there must be transfer of ownership on the one side and cash price for it on the other. In the present case, Courts below were not satisfied that price in cash was paid, and from the mere fact that possession of both the properties remained with the respondent or that the areas and the qualities of the properties said to be exchanged were unequal, no irresistible inference of sale could be drawn."
7. After perusal of the entire evidence and hearing the learned counsel for the parties I agree with the learned trial Court that the pre--emptor/respondent had failed to establish the passing of consideration by the appellant to Muhammad Afzal as per own statement of the respondent the land given by the appellant in exchange to the vendor and then sold by him was in possession of Allah Dawaia and Mehmood and not the appellant. Further, the vendor could not sell his land as it was of inferior quality and secondly the purchasers were apprehensive of attack by a pre-emptor.
In the circumstances the device of exchange was brought about which was lawful. The view of the learned appellate Court below to the contrary was not based on proper appreciation of evidence and law. Resultantly I accept the appeal, set aside the impugned judgment and restore the decree and judgment of the learned trial Court. The parties are, however, left to bear their own costs.