MUHAMMAD BASHIR KHAN JEHANGIRI, J---This appeal by leave is directed against the judgment of a learned Judge of Lahore High Court, Bahawalpur Bench, dated 2-4-1994 allowing Regular First Appeal No.12 of 1977/BWP filed by the respondents and in the result setting aside the judgment and the decree of the Additional District Judge. Rahim Yar Khan and restoring the judgment and the decree of the trial Court non-suiting the appellant in a suit fair pre-emption
2. By Exchange Mutation No.306 sanctioned on 25-3-1970, Ghulam hussain predecessor-in-interest of the respondents gave 33 Kanals and 10 Marlas out of Khata No.43 in village Thul Khair Muhammad Khan to Muhammad Afzal, his co-villager, and took in return 74 Kanals of land out of Khata No.31 which was also situated in the same village. Attacking this transaction as a sale Mst.
Mehraj Bibi, a sister of Muhammad Afzal transferee, brought a suit for possession of 74 Kanals out of Khata No.30/31 which had been acquired by Ghulam Hussain on payment of Rs.10,468.75 at which she valued its price.
3. In defence. It was, inter alia, contended that the transaction was not of a sale, but of an exchange. And was. Therefore, not pre-emptiable.
4. The learned trial Judge held the view that since there was no element of price in cash in the transaction it was of an exchange, he, therefore, dismisses the suit on 19-9-1972. Mst. Mehraj Bibi went in appeal before the Additional District Judge, Rahim Yar Khan, who held the transaction to be it sale and granted a decree for possession by pre-emption to Mst. Mehraj Bibi appellant on payment of Rs. 10,500.
5. Feeling aggrieved, the respondents challenged the appellant judgment and the decree before Bahawalpur Bench of Lahore High Court in a regular second appeal .
6. The learned Single Judge in the High Court., after appraising the evidence on record and hearing the learned counsel for the parties, concurred with the findings of the learned trial Judge that the appellant herein had not been able to substantiate the passing of consideration in cash-between the deceased respondent and Muhammad Afzal. He simply brushed aside the factum of sale by Mutation No.397 attested, on the day the impugned exchange mutation was sanctioned for sale of 33 Kanals and 10 Marlas of land by Muhammad Afzal which he had acquired in exchange from Ghulam Hussain to Allah Diwaya the latter's son-in-law and Mehmood Khan father of Allah Diwaya by observing that as per his own statement it was in possession of Allah Diwaya and Mahmood Khan and not the predeccesor-in-interest of the respondents". We have, however, riot been able to comprehend the implication of the further reasoning of the learned Single Judge. That "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. " On the parity: of this reasoning the learned Judge termed the to transactions: namely; one of exchange between Ghulam Hussain and Muhammad Afzal and second, of sale of land on .The same day which Muhammad Afzal had acquired from Ghulam Hussain in exchange, to the latter's son-in-law and his father as a legitimate device. While disapproving the view of the first appellate Court that the to transactions brought on one and the same day were an illegitimate device the learned Single Judge accepted the appeal set aside the impugned judgment of the first appellate Court and, restored that of the trial Court non-suiting the appellant.
7. The main issue tried was whether land measuring 74 Kanals out of Khata 31 was in fact sold by Muhammad Afzal to Ghulam Hussain, predecessor---in-interest of the respondents for a sum of Rs.10,500 but it was given colour of an exchange to ward of the plaintiff-respondents' right of pre- emption. It is submitted on behalf of the appellants that the High Court has misread the relevant evidence in reversing the finding of fact that the transaction was one of exchange. In support of this submission the learned counsel for the appellants had drawn our attention to the various reasons given by the learned Judge in the High Court and has urged that the predecessor-in- interest of the appellant having failed to prove the passing of sale consideration between the parties to the alleged exchange transaction which was sine qua non to declared a transaction to be of sale. According to him, there was strong circumstantial evidence on the record that the transaction was out and out a sale but was disguised as an exchange. As against this, the learned counsel appearing on behalf of the respondents has invited our attention to Ahmad Yar and another v. Muhammad Alam (1981 CLC 527) besides Ali Muhammad v. Malik Sanwal and others (PLD 1961 (W.P.) Peshawar 62) and Muhammad Amin v. Ghulam Yasin (PLD 1983 Peshawar 13) to contend that there was no element of price in cash in the exchange transaction. According to him, on the strength of the authorities cited above the failure to transfer possession of lands between the parties was not of any consequence to the appellants to turn the transaction of exchange into a sale. The learned counsel for the respondents then maintained that the sale of land obtained by Muhammad Afzal in exchange from Ghulam Hussain deceased transferee to Allah Diwaya and his father notwithstanding the fact that Allah Diwaya was the son-in-law of Ghulam Hussain was not such a glaring circumstance to hold a valid transaction of exchange to be a sale because it was 'device' and not a 'disguise'.
8. The of-quoted contention qua the failure of the pre-emptor to prove passing of consideration in cash in the case of sale disguised as an exchange or gift is not an absolute rule. The learned counsel for the appellant had rightly relied on the case of Faqir Shah and others v. Khalo Khan and others (PLD 1951 Peshawar 14) of a learned Judge of the former Court of Judicial Commissioner N.- W.F.P. There are observations, such as follows; in the judgment which support the contention of the learned counsel that it is very difficult to prove the passing of sale consideration is cash in the transactions camouflaged otherwise than sale:- "It is true that it is very difficult for a person, who attacks a certain transaction to prove that it is something else than what it purports to be, because the parties to the deed take all possible precautions to hide their true intentions, but in spite of that the plaintiff must bring some circumstances on the record from which it can reasonably be inferred that the transaction was what the plaintiff claims it to be. "
9. No doubt in the precedent of Feroz Shah supra the tranaction was held to be exchange and hence not pre-emptiable on the which are manifestly distinguishable. Nonetheless we approve of principle enunciated in Faqir Shah---s case (supra) that it is indeed very cumbersone for a person who seeks to have the transaction held to be different than what is purports to be for the parties to the transaction would resort to all possible measures to defeat any endevour to bring to the fore the real nature of the transaction. In this context, we drew the attention of the learned counsel for the respondents to the to authorities of this Court in: (1) Atta Muhammad Khanv. Mst. Khanzadi (1976 SCMR 104) and (2) Syed Shahba7 Hasan v. Sayed Muhammad Hussain arid others (1977 SCMR 197). In both the cases the passing of sale consideration in the exchange transactions was not at all adverted to. In the former precedent of Atta Muhammad (supra) the following observations which support the contention of the learned counsel for the appellants that in order to defend the right of pre-emption genuine device was no doubt permissible and the principle which governed the ruling stands out clearly if the attention is paid to the following observations:- "All the circumstances noticed by the High Court were directly relevant to the question in issue, particularly the disparity between the area alienated by [lie vendor and the one said to have been given in exchange by the present petitioner, as well as the respective locations of the to areas. It may be stated that the petitioner obtained 64 Kanals and 12 Marlas of land in exchange for nearly, 34 Kanals of his own land. It was also found that the land in suit was situated near the town of Fazilpur as compared to the area said to have been handed over to the vendor. The High Court also took note of the fact that the vendor had not even obtained possession of the land given to him in exchange, nor did he know the names of his co-sharers in the new Khata. We consider that on the basis of this evidence, and in the light of the circumstances, the Courts below were right in taking the view that this was in reality a transaction of sale and not of exchange."
10. Again a Full Bench of this Court in the latter case of Sayed Shahbaz Hasan (supra) reiterated the principle enunciated in the aforementioned case of Atta Muhammad Khan in the following paragraph:-- "Leaving aside the oral evidence led by the parties to which we will presently refere, there was, in our opinion, strong circumstantial evidence on the record which shifted the onus of this issue to respondents 1 to.
4. As mentioned earlier, the exchange-deed and the sale-deed of the land taken by respondent No.5, in exchange in favour of Faiz Bakhsh and others were executed and presented to the Sub--Registrar at Multan, simultaneously. The to instruments were registered at the same the. The picture which emerges out is that respondent No.5 acknowledged before the Sub- Registrar that he had executed the exchange-deed in favour of respondents 1 to 4 and the sale- deed, in favour of Faiz. Bakhsh and others, and, in turn, he received Rs.35,000. In this manner, respondent No.5 did not come to own or possess the land which was ostensibly given to him, in exchange, by respondents 1 to 4, Against this background it did not require much imagination to visulise that the so-called exchange and the sale in favour of Faiz Bakhsh and others were parts of the same transaction. In pursuance to it the land belonging to respondents 1 to 4 was transferred to Faiz Bakhsh acid others for Rs.35,000. This amount was paid by Faiz Bakhsh and others to respondent No:5 who had transferred his land measuring 452 Kanals in village Manganwala, to respondents 1 to 4. This inference receives further support from the fact that respondents 1 to 4 sold to Fait Bakhsh and others the remaining 12 Kanals of land owned` by them in village Banglewala for Rs.2,500."
11. The learned counsel for. The respondents was at pains to term the impugned transaction of exchange as legitimate device whereas the learned counsel for appellants has emphatically tried to convince us that it was disguise which has been held to be invalid. When a transaction is sought to be declared as of sale which has 'been purportedly described to be otherwise than sale the Courts are required to attend to the real nature of the transaction. A very at distinction between a device and disguise had been drawn in the case of Ch. Ghulam Ahmad Khan v. Ghulam Qutbuddin and others (PLD. 1960 (W. P:) Lah. 461) in the following illuminating paragraph:-- "The essential difference between a disguise and device is that a disguise is utilised to hide the reality by a counterfeit appearance. A false exterior is given to conceal the inner reality. In a device, the appearance is not false but a method is invented or adopted to evade the ordinary or normal consequences of a situation and thus to achieve an object. In a device, there is always a scheme, a design or a stratagem which is real and not false. In the present case, the purchaser was aware that there were chances of his losing. The property. If he made one transaction of sale and, therefore, he adopted the legitimate method of separating that portion of the plot of land on which a kacha shop existed, by purchasing that-portion first and then the rest of the plot of land. Both the sales were reasonable, capable of standing apart and genuine. They were, therefore, effective to defeat the right of pre-emption. If the device adopted in this case is rejected merely on the ground that there was a scheme behind it, then no device can succeed. I am, therefore, of the opinion that the right of the pre-emptor was evaded, eluded or defeated by legitimate means. "
12. The principle enunciated in the- case of Ghulam Ahmad Khan (supra) has been reiterated by a learned Judge in Chambers of the Lahore High Court in Ahmad Yar and another v. Muhammad Adam (1981 CLC 527). The ratio deducible from both the cases cited above. And which we have no hesitation to approve is that the marked difference between a disguise and device is that in the former, resort is had to hide the reality by a counterfeit appearance and false' cover is provided to the inherent reality. In the latter the appearance is not false but mode is adopted to evade a normal consequence of a situation.. As has been apply put in the fore mentioned case in a device there is a stratagem which is real and not false. In order to draw a distinction between the to in a given case evidence led by the- parties which includes both ocular and circumstantial has to be looked into. '
13. The evidence led by the parties has been recapitulated in the judgment of the learned Additional District Judge. The statement of Muhammad Afzal vendor who had sold the land which he got in exchange from Ghulam Hussain to the later's son-in-law and, his father simultaneously has been referred to Even if the portion of the statement of Muhammad Afzal (P.W.2) that he had sold the land to Ghulam Hussain (D.W.1) is ignored, the testimony of Rasool Bakhsh (P.W:3) lends credibility to the assertion of the appellant that Muhammad Afzal had actually sold .His land to Ghulam Hassian (D.W.1). The learned Additional District Judge has pointedly referred to the admission of Ghulam Hussain (D.W.1) in his evidence that "AfzalKhan had told him that no one was prepared to purchase his land; that he wanted to sell his land to pay land revenue". The First Appellate Court also noticed the statement of Allah Diwaya D.W.,2. That "the transaction of sale
(was) brought about on the day mutation of exchange was sanctioned and that Muhammad Afzal had told him that mutation of sale would be got attested alongwith that of exchange". The learned first Appellate Court, therefore, rightly concluded from the evidence of D.W.1 and D.W.2 that Muhammad Afzal was in dire need of money, therefore, he wanted to sell his land without any intention of acquiring any land in exchange.
14. As against this, the learned Judge in Chambers of the High Court, has not appraised the evidence led by the parties in its entirety notwithstanding the adoption of process of the pick and choose. With respect, we must say that the approach made by the learned Judge in the High Court was not correct. He has conveniently ignored that the to mutations one of ostensible exchange and the other of sale of the land which Muhammad Afzal vendor had got in alleged exchange from Ghulam Hussain simultaneously, were attested on one and the same day in the same mutation proceedings in favour of Allah Diwaya, son-in law of Ghulam Hussain and Mahmood father of Allah Diwaya for a sum of Rs.10478.75. In this manner, Muhammad Afzal vendor did not come to own or possess the land even for a moment which was ostensibly given to him, in exchange by Ghulam Hussain predecessor-in-interest of the respondents. The conclusion, therefore, is irresistible that the so-called exchange and the sale in favour of Mahmood and his son Allah Diwaya the latter being the son-in-law of Ghulam Hussain vendee were parts of the same transaction. The mode thus employed in order to defeat the right of pre-emption possessed by the appellant was a disguise which was resorted to hide the reality by a counterfeit I appearance.
15. The above resume of the evidence led by the appellant, on proper analysis, supports her case that the so-called exchange of land between Ghulam Hussain and Muhammad Afzal was in fact, a disguise to defeat her right of pre--emption. The statement made by Allah Rakha D.W.2 is quite explicit on the, point. It is, therefore, difficult to appreciate the view expressed by the learned Judge in the High Court that as the payment of sale consideration in cash between Ghulam Hussain and Muhammad Afzal remained for from proved it was an exchange and that the sale of land simultaneously which Muhammad Afzal had obtained in exchange from Ghulam Hussain the latter's son-in-law Allah Diwaya and his father was legitimate device.
16. The learned counsel for the appellant referred to the entire evidence on the record in support of his submission that the findings of fact reached by the learned First Appellate Court were extremely legitimate and, therefore, the learned Judge in the High Court has erred in law in reversing the findings of the First Appellate Court.
17. We have, however, not been impressed by this contention. A learned Single Judge in erstwhile of High Court of West Pakistan in the case of Ghulam Ahmad Khan (PLD 1960 (W . P.) Lahore 461)
(supra) had rightly held the view which we are inclined to approve that the question whether on facts found the to transactions (to mutations herein) constituted one transaction or more is a question of law, because it calls for determination of the legal effect of the proved facts. The question whether the legal effect of the to sales was that they should be therefore regarded as one transaction is a question that is capable of being agitated in second appeal.
18. In the light of the above discussion; we hold that transfer of 74 Kanals of land out of Khata No.31 of village Thul Khair Muhammad by Muhammad Afzal in favour of Ghulam Hussain predecessor- in-interest of the respondents ostensibly in exchange for 33 Kanals and 10 Marlas out of Khata No.43 in the same village was a sale for a sum of Rs.10,460. This amount was paid by Ghulam Hussain deceased vendee on behalf of his son-in-law Allah Diwaya and the latter's father Mahmood to whom Muhammad Afzal had sold the land which he got in ostensible exchange from Ghulam Hussain. The to transactions were however, comuflaged as independent of each other in order to defeat the appellant's right of pre-emption.
21. On this findings, we set aside the judgments and the decrees of the trial Court and those of the High Court whereby the former were affirmed and restored that of the First Appellate Court, allow the appeal and decree the suit of the appellant for possession by pre-emption of land measuring 74 Kanals out of Khata No.31 and situate in village Thul Khair Muhammad, District Rahim Yar Khan, on payment of Rs.10,460. Four months the is allowed to deposit the aforesaid amount or a part thereof if it had not been deposited earlier. In default, the suit shall stand dismissed with costs throughout, otherwise the parties will bear their own costs.