' MALIK MUHAMMAD QAYYUM, J.---This petition under section 115, C.P.C. Arises out of a suit for possession through pre-emption filed by the petitioner seeking to pre-empt the alienation of 18 Kanals 10 Marlas of land situate in village Patti Rakh, Tehsil and District Muzaffargarh by Najeebud- Din, respondent No,2 herein, to Muhammad Hafeez and Khalil Ahmad, respondents Nos.1 and 2. It was alleged in the plaint that though the transaction was in fact a sale, it was given the colour of gift in order to frustrate right of pre-emption. In the written statement filed by the respondents it was reiterated that the transaction in question not a sale but was gift. The other allegations were also traversed.
2. On the pleadings of the parties, following five issues were framed by the Trial Court:--
(i) Whether the suit is not properly valued for the purpose of court-fee and jurisdiction and what is its proper valuation? OPD
(ii) Whether the transaction in question is a sale?
(iii) If Issue No,2 is proved, what was the market value of the suit land at the time of sale? OPP parties. .
(iv) Whether the plaintiff has superior right of pre-emption qua the vendee? OPP
(v) Relief.
3. On 27-4-1976, the suit was decreed by the Trial Court which found that the transaction in question was indeed a sale and not a gift. While deciding Issue No,2 in favour of the petitioner, it was observed that the relationship between the alleged donor and donee had not been clearly established nor the notice which obliged the donor to part with valuable property had been proved. The Trial Court took notice of the fact that the daughter of the donor was alive and there was no reason as to why she should have been deprived of her inheritance. On these findings the suit of the petitioner was decreed.
4. Feeling dissatisfied, the respondents took the matter in appeal to the District Court and succeeded. The learned District Judge set aside the findings of the Trial Court on Issue No,2 and held that the transaction in question was a gift. It was observed that the petitioner/plaintiff had not been able to prove through any cogent evidence that the transaction was in fact a sale. As a consequence of this finding the suit of the plaintiff/petitioner was dismissed.
5. Mirza Manzoor Ahmad, learned counsel for the petitioner contended that the learned District Judge while reversing the findings of the Trial Court has acted illegally and with material irregularity by not only ignoring material evidence on the record but also failing to consider the criteria laid down by the superior Courts for determining true nature of transaction in such cases.
Relying on Hayat Ali and another v. Ghazan (represented by his heirs) (1981 CLC 456), Muhammad Bashir v. Mirza and others (1987 SCMR 1277) and Muhammad Ashraf v. Bahadur Khan and others (1989 SCMR 1390), he urged that as the donor and donees were not related inter se nor any circumstance was brought on record justifying parting with of valuable property by the donor in favour of donees without any consideration, the lower appellate Court was not justified in holding the transaction to be a gift.
6. Mian M. Zafar Yasin, learned counsel for the respondents has opposed this petition by raising an objection that the question as to whether the transaction was a gift or a' sale is one of fact and the findings recorded by the District Court cannot be interfered with in the revisional jurisdiction of this Court. The learned counsel relied upon Ali Muhammad v. Malik Sanwal and others (PLD 1961 Peshawar 62) to contend that the Court should be also in assuming that the transaction was not what it purports to be. In the last, the learned counsel urged that the relationship between the donor and the donees stands established on the record.
7. There is considerable merit in the contentions raised by the learned counsel for the petitioner that the learned District Judge while reversing the findings of the Trial Court has not examined the case in its true perspective. From a perusal of the impugned judgment it is to be seen that the reasons which A prevailed with the Trial Court for taking a contrary view have not been adverted to at all by the District Judge although he was obliged to do so as ruled by the Supreme Court of Pakistan in Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617).
Consequently, the findings recorded by him are not immune from scrutiny by this Court in its revisional jurisdiction.
8. It is also to be noticed that the only reason which prevailed with the District Judge for holding that the transaction was not that of sale but gift was that the parties had so stated before the Revenue Officer at the time of attestation of mutation and there was no other cogent evidence on the record to prove sale. This approach of the learned District Judge is clearly erroneous. As observed by the Chief Court of Punjab in Tara Chand v. Baldeo (117 PR 1890) in such a case to expect the plaintiff to produce direct evidence to show that the transaction was a sale, would be an impossibility. The fact that the donor and the donees had at the time of attestation of mutation had described the transaction to be a gift was of no consequence in view of the assertion of the petitioner that this device was adopted in order to defeat his right of pre-emption. Moreover, the pre-emptor was not a party to the transaction and was not bound by the acts of the donor and the donees. Furthermore, section 4 of the Punjab Pre-emption Act, 1913 itself provided that it is open to a pre-emptor to show that the transaction was in fact a sale and has been disguised as a gift.
9. In order to determine real nature of the transaction this Court as also the Supreme Court of Pakistan has laid down certain tests have been laid down by the superior Courts in various cases some of which are Chiragh Din v. Allah Din (70 Punjab Records 1916), Muhammad Bashir v. Mirza and others (1987 SCMR 1277), Hayat Ali and another v. Ghazan (1981 CLC 456) and Sardara v.
Muhammad Abid (1985 MLD 467). The ratio decidendi of these cases is that it is not necessary for the pre-emptor to show that consideration had passed from vendor to vendee to prove that the transaction was a sale as it is almost impossible to do so. On the other hand, while determining the nature of the transaction, the Court should look into the relationship between the donor and the donee, the reason which had motivated donor to part with his property without any consideration, the financial position of the donor and the fact as to whether he owned some other property and has legal heirs or not.
10. Considered from that angle, it becomes obvious that the Trial Court was correct in holding that the transaction was in fact a sale and not a gift. It is a common ground between the parties that the so-called donor had a daughter and he having already sold his other holding in Jhelum, the land in dispute was the only property left with him. In these circumstances it is difficult to accept the plea that he would have made gift of the land to respondents Nos.1 and 2 so as to exclude his daughter. Nothing has been brought on record to show that the donor was beholden to respondents Nos.1 and 2 or that some special services have been rendered to him by respondents Nos.1 and 2. The alleged donor while appearing as D.W.4 had stated that he has been living with respondents Nos.1 and 2 but it was not so asserted by respondent No,1 when he appeared as his own witness. Both the alleged donor as also the donees had remained silent as to the reasons which impelled the donor to make gift.' Although in the mutation there is reference to some services being rendered by the donees to the donor in lieu of which gift was made yet both D.W. 4 and D.W. 5 significantly did not depose on this aspect.
I 1 . The most important evidence, however, was furnished by the statement of P. W.1, Fateh Muhammad Lambardar, who had identified the alleged donor before the Revenue Officer at the time of attestation of mutation. It is unfortunate that the Additional District Judge chose to discard his statement on a wholly untenable reason that if the transaction was a gift it would have been brought to the notice of the Revenue Officer. This approach is clearly fallacious. If the parties intended to conceal the real nature of transaction to expect that they would disclose it to the Revenue Officer is clearly absurdity. The finding of the Trial Court that the relationship between the donor and the alleged donees has not been clearly established is also in accord with the evidence.
Although it was stated by Muhammad Hafeez that Najeeb-ud-Din was son of his maternal uncle but from his cross-examination and also the statement of D.W. 4, it would appear that part of the statement was not correct. Be that as it may, even if it is assumed that the donor and the donees were cousins inter se yet the relationship was not close enough to justify the conclusion that the property had been gifted by the donor out of love and affection for the donees. From the circumstances and the evidence obtaining on the record, it is evident that the transaction in question was a sale and not a gift and the Trial Court was correct in holding it to be so.
Unfortunately the Additional District Judge interfered with this finding without any valid justification.
12. In Muhammad Bashir v. Mirza and others (1987 SCMR 1277), the Supreme Court of Pakistan observed that where the alleged donor was not related to the donee and belonged to a different village, there was no reason to assume that the donor had gifted the property to the donee. In Muhammad Ashraf v. Bahadur Khan and others (1989 SCMR 1390), it was laid down that in the presence of other legal heirs particularly one's own children and in the absence of any explanation as to why gift was being made in favour of nephew it was difficult to accept the transaction as a gift. Same view was taken by this Court in Hayat Ali's case supra. The judgment in Ali Muhammad v.
Malik Sanwal and others (PLD 1961 Peshawar 62) relied upon by the respondents' learned counsel is of no avail and has no applicability to the facts of the present case.
13. So far as this objection that the findings recorded by the learned District Judge are not liable to be interfered with in the revisional jurisdiction of this Court, suffice it to say that as has been found, the judgment of the District Judge is clearly contrary to law and is based upon irrelevant considerations. It may be mentioned that in Sardara v. Muhammad Abid (1985 MLD 467), this Court set aside concurrent findings of the Courts below and held that the transaction was that of sale and not gift in revision. Again in the case of Hayat Ali's case supra, this Court set aside the finding of the Additional District Judge and restored that of the Trial Court holding that the transaction in question was a sale. It may also be mentioned that in the case of Muhammad Bashir v. Mirza and others (1987 SCMR 1277), the High Court had set aside the concurrent findings recorded by the Courts below and held that the transaction was a sale. That judgment was affirmed by the Supreme Court of Pakistan.
For the foregoing reasons, this petition is accepted, the judgment and decree of the District Judge, Muzaffargarh is set aside with the result that the judgment and decree of the Trial Court dated 27- 4-1976 stands restored. No order as to costs.