JUDGMENT MUHAMMAD ISLAM BHATTI, J.- The facts giving rise to the filing of this civil revision, briefly stated, are that a mutation purporting to be that of exchange bearing No. 351 in respect of immovable properties situated in the area of village Sultan Pur Tehsil Shah Pur District Sargodha was attested on 28-8-1991. Muhammad Hayat respondent herein brought a suit for possession by Pre-emption of land measuring 3 kanals 5 marlas comprising khata No. 7 Khatuni No. 3L square No. 35 killa No. 3/1/1, as per the entry in the register Haqdaran zamin for the year 1988-89, of the said village Sultan Pur claiming that this land had in fact been sold by its real owner Bakhsha son of Nabi caste Maiken to Muhammad Aslam and Rehmat Khan, through this mutation for a sum of Rs.
25,594/- but the transaction was given the colour of an exchange to defeat his pre-emption right, because no land was obtained by Bakhsha in exchange nor did Muhammad Aslam and Rehmat Khan, own any residential land which could be allegedly given to Bakhsha. He claimed further that an inspection of the revenue record revealed that prior to this Mutation another Mutation No. 349 was also entered but was rejected because there was no property available to be given in exchange and as such it was a sale pure and simple. He averred that he was possessed of superior right of pre-emption qua the vendees inter alia on the grounds of being a co-sharer in the khata and had made the . Requisite talabs in accordance with law but the defendants refused to admit his claim privately and hand over the possession of the land to him by accepting the sale price of Rs. 25,594/-, which obliged him to come to the civil Court in exercise of his right of pre-emption, on 8-10-1991. One Sher Muhammad alias Shera son of Nabi of the said village also brought a similar pre-emption suit on 5-11-1991 claiming that the sale had in fact been taken place for a sum of Rs.
28,000/-. Proceedings in both these civil suits were consolidated and each pre-emptor was made party in the other, as a defendant. Both the suits were hotly contested by Muhammad Aslam and Rehmat Khan and the leamed Civil Judge then seized of the matter framed the following preliminary issues on 8-2-1992:-
1. Whether the transaction in dispute is sale? OPP
2. Preliminary relief.
2. Muhammad Hayat respondent/plaintiff appeared as his on witness and besides placing on record certain documents which was done through his counsel produced one Atta Muhammad to substantiate his claim. On the other hand- Sher Muhammad rival pre-emptor besides appearing himself as his own witness produced Zafar Iqbal as DW-1. Allah Bakhsh .DW-3 and Rehmat Khan defendant DW-4 appeared as witnesses of the contesting defendants.
Muhammad Aslam, etc. V. Muhammad Hayat.. Rev. C.3 (Muhammad Islam Bhatti, f)
After appeasing this evidence the leamed Civil Judge came to the conclusion that the evidence led by the pre-emptors regarding the nature of the transaction to establish that it was sale was not sufficient to discharge burden of this issue. On the other hand, he went on to observe, there was evidence to suggest that the contesting defendants had a plot in the village to give in exchange!
As regards Mutation No. 349 he came to the conclusion that the rejection thereof did not lend any support to the version of the pre-emptors. He, therefore, answered issue No. 1 against the preemptors and on the basis thereof dismissed both the suits but left the parties to bear their own costs, by means of his detailed judgment and decree dated 26-7-1992.
3. Feeling aggrieved by this judgment and decree Muhammad Hayat preferred an appeal Which was finally accepted by the leamed District Judge Sargodha by means of his detailed judgment dated 6-10-1994. He reappraised the evidence and on the basis thereof arrived at the conclusion that this was a sale pure and simple for a sum of Rs. 25,594/-. According to him both the PWs, who were subjected to a searching cross-examination, had established on record that the amount was in fact paid. He was not impressed by the argument of the leamed counsel for the contesting defendants that Muhammad Hayat plaintiff was closely related to Atta Muhammad PW and, as such, the latter could not be termed as a reliable witness. He observed that mere relationship was no ground to discard the evidence of the witness unless it was shown that he had a motive or malice to make a false deposition. He also observed that the mere fact that the sale consideration was paid in currency notes of Rs. 1000/- and Rs. 500/- denomination and one note, of the denomination of Rs. 100/-, could not be a good reason to disbelieve their evidence on the assumption that the payment of Rs. 94/- could not be made in the absence of the smaller notes.
According to him the vendees might have paid him a sum of Rs. 25,600/-, as is our daily experience in ratal life, where change in currency notes of smaller denomination is not easily available. He also took note of the fact that on 20-8-199L Mutation No. 349 was entered in connection with this very transaction but it was rejected as no delivery of possession took place and no such residential plot was in existence. Ex. P-2 led him to conclude that the vendees were committing fraud with the connivance of the vendor named Bakhsha simply to avoid pre-emption.
Not -only that he also observed thaj_ during arguments the appellant (Muhammad Hayat pre- emptor) made an open offer to the respondents that if they had a genuine claim in regard to the exchange of their plpt with the suit land, they should say so on the Holy Quran, but the defendants turned down this offer and frankly conceded before him (District Judge) that it was a sale. It Was on the basis of this discussion that he came to the conclusion that the transaction in question was not an exchange but a sale and the findings of the leamed Civil Judge in this behalf were totally erroneous and misconceived. He, therefore, set aside the impugned judgment and decree and remanded the case to the C6urt of Syed Mukhtar Hussain Shah, Civil Judge 1st Class, Shahpur for fresh decision pf the case in accordance with law. This judgment and decree dated 6-10-1994 has been assailed in this civil revision.
4. I have heard the learned counsel for the parties and have carefully perused the record. It may be mentioned at the very outset that in this Court also an application was moved by Muhammad Hayat Respondent proposing special oath to the petitioner Muhammad Aslam. Muhammad Aslam failed to tum up. His brother Rehmat Khan, however, stated on 9-5-1997 that both he and Muhammad Aslam were not ready to take such an oath on account of their traditions. The application moved in this behalf was, therefore, not pressed by the applicant and it was accordingly dismissed. The very fact that the contesting defendants/petitioners were not at all willing to resolve their dispute on a Special Oath, lead to a genuine inference that they were perhaps not themselves sure with regard to the correct nature of the transaction and they were not truthful in their claim that it was a transaction of exchange. The observation of the leamed District Judge that the defendant not only turned down this offer but also frankly conceded before him that it was a sale, has to be taken into consideration and given due weight to specially when it has not specifically assailed or challenged.
5. Even otherwise the evidence on record considered minutely, leads to one and the only irresistible cbnclusion that the transaction was that of a sale. Had it not been so the contesting defendants would have made a genuine effort to establish on record that there did exist a plot in residential area which they owned and it was given to Bakhsha in exchange, particularly so when it was pleaded by the plaintiff/respondent in so many words, right in his plaint, that they did not own any such residential area nor was the possession of the said residential immovable property handed over. For this, they could have produced the panvari to state so on the basis of the record with him.
They could also produce other independent evidence and in this behalf they could move an application under the relevant provisions of law for the appointment of a Local Commissioner to get the said plot located through metes and bounds.^Since they failed to do either the leamed District Judge was fully justified in placing reliance on the evidence produced by the plaintiff to conclude that the payment of sale consideration stood proved on record and the findings of the leamed Civil Judge were'erroneous and misconceived.
6. Before parting with this judgment it may be pointed out that the learned counsel for the petitioners tried to urge before me that under the new pre-emption law. As contained in the Punjab Pre-Emption Act (IX of 1991) it is not at all open to the Court to look into the nature of the transaction or to hold that the transaction which was ostensibly of an exchange was in fact that of sale in nature. I am afraid I do not find myself in agreement with him. While it is permitted to defeat the right of a prospective per-emptor through lawful device, the Court cannot be said to be precluded from looking into the nature of the transaction. If it were true it should have been so pleaded before the leamed Civil Judge. It was, however, not done by the contesting defendants and they allowed the Court to proceed with the trial and find out the correct nature of the transaction. This contention of the leamed counsel for the petitioners does not carry weight and is accordingly rejected.
7. The result is that I find this revision petition without merit and it is accordingly dismissed with costs.