' Through the present revision petition, Arif Hussain plaintiff-petitioner has questioned the judgment and decree of the learned District Judge, D.I. Khan dated 4-1-1994, whereby on acceptance of appeal filed by defendant-respondents 1 to 9, set aside the judgment and decree of the learned trial Court and dismissed the suit of the plaintiff-petitioner.
2. The facts, in brief, of the case are that the plaintiff-petitioner brought a suit against the defendant-respondents to the effect that through a gift Mutation No,1324 dated 24-6-1989, Mst.
Siraj Bibi defendant-respondent No,9, transferred the suit property, fully detailed in the heading of the plaint, to one Abdul Qayyum Khan, defendant-respondent No,1 and vide Mutation No,1334 dated 26-7-1989 and Mutation No,1335 dated 26-7-1989, the defendant-respondent No,1 subsequently transferred 200 Kanals 9 Marlas to Mst. Shehnaz Bibi defendant No,2 (new added and represented by respondents 2 to 7), and 187 Kanals to defendant-respondent No,8 out of the suit land; that the said two defendants 2 and 3 vide Mutation Nos.1338 and 1339, dated 28-8-1989 mortgaged the said property with defendant-respondent No,10 (Agricultural Development Bank of Pakistan); that by filing the present suit there plaintiff-petitioner pre-empted the said transaction to be a sale and just toward off the pre-emptive right of plaintiff-petitioner the transaction was coloured with the name of gift; that the subsequent alienation of the suit property in favour of defendants 2 and 3 and then its mortgage with the Bank, defendant No,2 by defendants 2 and 3 was also directed to defeat the petitioner's right of preemption and the same were ineffective upon his right that he is co-sharer in the suit Khata, whereas the defendants have got no such qualification. Superior right of pre-emption was also claimed on the grounds of contiguity and participator in appendages and immunities; that on getting knowledge of the sale, the plaintiff- petitioner made 'Talb-i-Muwathibat and Talb-i-Ishhad'. The defendant-respondents denied the superior right of pre-emption, therefrom the plaintiff-petitioner was compelled to knock at the door of law by filing the present suit.
3. The defendants were summoned, who resisted the suit by submitting their written statements.
The pleadings of the parties gave birth to as many as 16 issues. During the pendency of the suit defendant No,2 died and her L.Rs, were brought on record. Evidence of the parties was recorded as they wished to adduce in support of their claims. A Local Commissioner was appointed for recording the statement of Mst, Siraj Bibi, defendant No,2 as a witness of the plaintiff-petitioner.
4. The learned trial Judge, at the conclusion of the trial, granted decree as prayed for by the plaintiff but the Appellate Court, however, reversed the judgment and decree of the trial Court and dismissed the suit of the plaintiff. Now the petitioner approached this Court of setting aside the judgment and decree of the Appellate Court and restoration of the judgment and decree of the trial Court and praying for granting decree in his favour.
5. The property which has been transferred by Mst. Siraj Bibi to the vendee, defendant No,1 Abdul Qayyum (who hereinafter may be called as defendant No, 1) is 445 Kanals and 11 Marlas. The Mutation No,1326 dated 24-6-1989 was entered as gift mutation. The plaintiff-petitioner who hereinafter may be called as petitioner) is the brother of Mst. Siraj Bibi while the defendant- transferee has got no relationship whatsoever with the transferor i,e, Mst. Siraj Bibi. The defendant- transferee has further transferred some of the land measuring 207 Kanals and 9 Marlas through a gift Mutation No,1334, dated 26-7-1989 in favour of his mother, Mst. Shahzad Bibi, defendant No,2 while an area of 187 Kanals and one Marla was transferred to his sister Mst. Gulshan Bibi through a gift Mutation No,1335, dated 26th July, 1989. These subsequent transferees further mortgaged their respective properties with the Agriculture Development Bank vide Mutations Nos.1338 and 1339 dated 28-8-1989 respectively. The plaintiff's claim is that he made Talb-iMuwathibat on 2-8-1989 while notices for establishing 'Talb-e-Ishhad' were sent on 3-8-1989 and the suit was instituted on 5-12-1989. The plaintiff has also sent notices in compliance of Talb-i-Ishhad' to the subsequent transferees.
6. The crucial point for determination in the case and which was also argued and on which the findings of the two Courts below are also at variance, are:--
(i) That whether the transfer is gift or sale and in which respect issue No,7 was framed which is "whether the colour of gift has been given to sale?"
(ii) Question of Talab ' In which respect issue No,6 was struck and which is reproduced: "Whether the requirements of section 13 of N.-W.F.P. Pre-emption Act, 1987 have been fulfilled?"
' The trial Court observed that there is no direct evidence of payment of sale consideration but however impressed by the circumstances of the case e.g.:
(a) No relationship of the donor and donee.
(b) A huge property transferred to a stranger.
(c) Statement of the donor does not support the factum of gift.
(d) Depriving by donor her six sons with whole of the property through instant gift. And concluded that in all probabilities the transaction could.Not be consided as a gift but it was really a sale and on the question of Talab positive findings were given holding that proper compliance of Talab had been made. The appellate Courts while reversing the findings of the trial Court on the question of gift did not advert to the reasons given by the trial Court but upset the findints by simply stating that the payment of price has not been proved and thus holding the transaction as gift. While on issue of Talab, it was observed that Talab-iMuwathibat" has not been made on the day on which the information was received and ultimately on acceptance of the appeal, non-suited the plaintiff.
7. The comparison of the reasons advanced by the two Courts below, one cannot leave without agreeing with the findings 'of the trial Court. The donor who is Purdahnasheen' lady was not allowed to come to the Court but, however, she was examined through commission constituted by the Court and relevant portion of her statement is as {{URDU TEXT}} tt i- This deposition of the transferor Mst. Siraj Bibi who is also defendant No,4 shows that she was not aware of the nature of the transaction what to speak of the transfer of land through a gift. However, facts of the case that she is having six children and there is nothing on record that in addition to huge property which was transferred she was in possession of any other property and thus depriving her children for the sake of a stranger without any receipt of penny and for no other ostensible consideration. In this respect the transferee himself deposed: "I do not know as to why defendant No,4 transacted a gift mutation to the disadvantage of her children."
' There is no other evidence of gift except the mutation and which fact i,e, factum of gift has not been supported by the transferor herself as it is evident from her statement quoted above. The other most important ingredient of delivery of possession is also lacking and in which respect the transferee deposed; ".... I had not taken over physical possession of the land, and uptil now I am not in physical possession of the suit land..... "
' The transferor being guilty conscience having apprehension in her mind of any possible pre- emption suit specially of the transferor, the present plaintiff, defendant No,1 adopted a strange phenomena by further transferring some portion of the land to his mother and sister and also mortgaged portion of the property with the Agricultural Development Bank to create further complications in the way of expected pre-emptor and to manage to defeat any such attempt. All these facts lead one to believe that the transaction was nothing else except sale but the colour of gift has been given to it.
8. The other question i,e, with regard to the ' Talab' if a look is made at the relevant provision of law and the evidence on record, no defect can be found in making ' Talab' and specially ' Talb-i- Muwathibat' which the learned Appellate Court held otherwise. According to the note given to section 113(i) of the Act, X of N.-W.F.P. Pre-emption Act, 1987 and which reads: "Any words indicative of intention to exercise the right of pre-emption are sufficient."
' Indicated that there is no specific word through which the expression be made but what is important i,e, intention to have been expressed and in this respect the plaintiff who appeared in the Court stated that: "..On 2-8-1989, it was morning time, Ghulam Sarwar my agent, came and told us that Abdul Qayyum Khan has told him that he had purchased the share of Mst. Siraj Bibi defendant No,4, there and then I told that I am co-sharer and why Abdul Qayyum has purchased this property and then I went to Karachi and enquired from the Patwari about the said sale....."
' If an analysis is made of the above version of the plaintiff, it would be found sufficient to fulfil the requirement of Talb-i-Muwahthibat' as the words are indicative of his intention to pre-empt the land. The said witness after elaborating is conduct to ' Talb-e-Ishhad' etc. Which was made on 3- 8-1989, he further stated: "On 4-8-1989 I, Raza Muhammad and Ghulam Hussain went on the disputed land where I announced that since I sent the notices, therefore, I will pre-empt the suit property."
' It was this portion of his statement which was taken by the appellate Court for Talb-e-Muwathibat' and held that he got knowledge on 2-8-1989 while he made 'Talb-i-Muwathibat' on 4-8-1989 which is not the correct position as actually the 'Talb-i-Muwhathibat' had been made earlier as revealed from the quoted portion of his statement and the subsequent announcement on the spot is a further reaffirmation of his intention even on this part and in this respect the findings of the Appellate Court are also not sustainable.
9. When it has been proved that the transaction was a sale and not gift, and being co-sharer, the plaintiff-petitioner has got superior right of pre-emption as compared to defendants. Defendants 2 and 3 have also admitted that fact that they have mortgaged their share of land with the Agricultural Development Bank of Pakistan, defendant No,5 for a sum of Rs,60,000 receiving Rs,30,000 by each of them. The learned trial Court has rightly decreed the suit in favour of the plaintiff-petitioner and the learned Appellate Court has misread the evidence on record to arrive at the impugned conclusion. Consequently on acceptance of this revision petition, the judgment and decree of the learned District Judge, D.I. Khan dated 4-1-1994 is set aside and that of the learned trial Court dated 22-7-1993 is restored. However, the parties are left to bear their own costs.
' Before parting with the judgment it may be observed here that the preemption amount (deposited in the Court) of the share of defendants 2 and 3 (Mst. Shahzad Bibi and Gulshan Bibi) be available for the recovery of the bank's (defendant No,5) loan advanced to them by mortgaging the property in dispute and should not be paid to them (defendants 2 and 3 till the satisfaction of loan of the Banks in case of its (Bank) entitlement.