' Shaista Gul and nine others, who are the legal representatives of Niaz Gul plaintiff in three suits, have moved two Regular Second Appeals Nos. 59 and 60 of 1970, and a Civil Revision No, 27 of 1910, feeling aggrieved by the orders of the Senior Civil Judge, Kohat confirming the decisions of the Civil Judge at Kohat, the defendant-respondents in each case being Qaza Khan and Jan Gul. Since common questions of law and fact between the parties arise, I also propose to dispose of R. S. A.
No, 60 and Civil Revision No, 27 of 1970, by this judgment.
2. To appreciate the controversy between the parties in its true perspective, I should like to refer to the facts which, on the basis of the material placed on the record, could not be reasonably disputed. A part of the land precisely speaking Khasras Nos. 448, 195, 445 and 451 possession of which the appellants seeks as it will appear from the Jamabandi of 1958-59 Exh. P. A./1 on File No, 191/1 of 1964 of the Civil Judge, Kohat was owned jointly by five sets. Abdullah Khan ens had 80 shares ; Jan Gul defendant No, 2 had 20 shares alongwith the daughters of Junab Gul who also had 20 shares ; Kheran 80 shares ; Dist. Nazo etc. 21 shares ; and Niaz Gul predecessor of the appellants 19 shares. In this land Kheran got half of the inheritance of Abdullah Khan and Remat Khan of the first set by Mutations Nos. 1652 and 1653 and thus he became owner of 120 shares out of 240 shares, that is to say, half of the aforessi1 Khasra Numbers. A reference to the said Jamabandi will show that in three other Khasra Numbers, claimed by the plaintiff-appellants, namely, 220, 446 and 447, out of 240 shares, Kheran son of Mageen was rot initially the owner of any share. He got half share of Abdullah and Rehmat Khan by inheritance Mutation Nos. 1652 and 1653 alluded to above and thus became owner of 40/244 equal to 1/6th share. By mutation No, 1654 attested on 22-9-1962, Kheran son of Mageen transferred his rights in aforementioned land for an ostensible price of Rs, 2,000 in favour of Niaz Gul (predecessor of the appellants) and his two brothers Eid Gul and Rashid Gul. Jan Gul, who has already indicated, had 19/240 share pre-empted the sale as per Suit No, 130/1 instituted on 18-6-1953 and that suit was decreed on the basis of a compromise between Jan Gul and Niaz Gul on 269-1963. It may be mentioned that earlier during the pendency of that suit, Mutation No, 1659 entered on 1-7-1963, and attested on 5-7-1963, copy Exh. P. A./4 on File No, 191/1, Eid Gul and Rashid Gul brothers of Niaz Gill, who had jointly purchased the land, had transferred their shares to Niaz Gul. The decree obtained by Jan Gul was executed and he got Dakhal Malklana on 9-1-1964 ride Execution File No, 136/10 of 1963. Accordingly Mutation No, 1697 was attested on 22- 2-1964, note Exh. P. A./8 on File No, 250/1 refers. The matter did not end there and by Mutation No, 1699 entered on 6-4-1964 and attested on 14-5-1964, copy Exh. P. A /2 on File No, 191/1, Jan Gul mortgage I with possession all the rights that he had acquired by pre-emption excepting those in Khasra No, 447, for an ostensible amount of Rs, 2,000. The order of the Revenue Officer will bear this out that Niaz Gul objected to the sale saying that it was in violation of the oath taken by Jan Gul to satisfy his apprehensions that Jan Gul was not a benamidar for Qaza Khan and that as a matter of fact the transaction was that of a hale and that it was just being given the colour of mortgage.
3. He did not stop at that. On 19-4-1964, Niaz Gul instituted Civil Suit No, 191/1 of 1964, for declaration that decree obtained by Jan Gul previously in Suit No, 130/1 decided on 26.9-1963 was the result of fraud and would not, therefore, bind him and in the alternative he prayed that a decree for possession by pre-emption on payment of Rs, 1600 with respect to that very land including of course Khasra No, 447 be passed in his favour.
4. While the aforesaid spit was pending, three Mutations Nos, 1705, 1705/1 and 1704 were entered on 11-7-1964, 21-8-1964 and 11-7-1964 respectively. All the three mutations were attested on 25-8-1964.
These mutations are Exh. P. A./3, Exh. P. A./4 and Bah. P. A./5 in File No, 250/1. By the first mutation, Jan Gul gave in exchange 1/22 share in Khasra No, 447 and similar share in the equity of redemption of other six numbers to Qaza Khan who accidentally happened to be a mortgagee of these Khasra Numbers, for 1/10 share in Khasra No, 189 which he got from Qaza Khan. Mutation No, 17t5/1 is Fak Takmili and shows that 1/22 share in six Khasra Numbers which were mortgaged with Qaza Khan and the enquity of redemption whereof had been tansferred to him would thereafter belong to Qaza Khan. Niaz Gul thereupon instituted Suit No, 250/1 for pre-emption of the property conveyed on payment of Re. 100 saying that it was not an exchange but was sale for Rs,
100. The clock did not stop here and mutation No, 1723 Copy Exh. P. A./12 on File No, 250/1, was entered on 15- 9-1965, so as to convey by sale half of the four Khasra Numbers mentioned in Khata No, 116 and one sixth share of three Khasra Numbers mentioned in Khatas Nos. 117 and 118 to Qaza Khan on payment of Rs, 3,000, over and above the mortgage amount. It is noteworthy that this Mutation purports to have been entered on a report by Gulab Saab son of Qaza Khan. This mutation was, however, rejected at the instance of Jan Gul in the presence of Qaza Khan on 18-9-1965. But on that very day, mutation No, 1725 was entered at the instance of Jan Gul whereby he disposed of by sale his halt share out of four Khasra Numbers in Khata No, 116 and one eighth share out of three Khasra Numbers in Khatas Nos. 117 and 118 for Rs, 3,00J excluding the mortgage amount. This ,notation was attested on that very day despite the protest of Niaz Gul and the order will further show that since there was deficiency in the area of Mutation No, 1723 this mutation was being attested.
5. The net result of this Mutation No, 1725 attested on 18-9-1965, is that the camouflage vanished and Qaza Khan became the ostensible owner of the land which was being claimed by Niaz Gul through preemption. Niaz Gul thereupon brought another Suit (No, 133/1 on 30.5-1966), for possession by pre-emption adding that he wanted to have it on payment of Rs, 1,600 which amount he had already deposited in connection with his earlier Suit No, 191/1 to this very effect. The learned trial Judge dismissed the suit of Niaz Gul bearing No, 250/1 whereby he had questioned the ostensible exchange of 1/22 share in the land whereof he had sought pre-emption holding that ho (Niaz Gul) bad failed to prove that it was sale. He also dismissed Niaz Gal's Suit No, 191/1 of 1964, for declaration on the ground that the decree in Suit No, 130/1 had not been obtained by fraud and furthermore declined to grant him the alternative relief for possession by pre-emption with respect to that land holding that Qaza Khan had become a co-sharer on the basis of exchange in Suit No, 250/1 notwithstanding his observations that the transaction impugned in the Suit was not a mortgage but a sale. As far as Suit No, 133/1 of 1966 is concerned, the learned trial Judge even though the parties had led evidence in the case up-held the preliminary objection raised at the lime of the arguments regarding the non-deposit of the pre-emption money in pursuance of the direction of the Court and rejected be plaint with reference to section 23 of the pre-emption Act.
The legal representatives of Niaz Gul were evidently not satisfied and they moved three separate appeals before the Senior Civil Judge, Kohat, who was exercising appellate powers. But he by his separate. Orders dated 23-10-1969, dismissed all the three appeals. A reference to the judgment of the learned Senior Civil Judge against the decree in Suit No, 191/1 of the 1966, (Civil Appeal No, 62/13 of 1969 I will show that he agreed with the trial Court that the decree in Civil Suit No, 131 had not been obtained by fraud and rather it was the result of free consent and that in pursuance of that decree Niaz Gul had received Rs, 1,600. It. Was also added that the plaintiff had failed to prove his superior right, quite evidently the learned Judge was having the rights obtained by way of exchange by the vendee which could not be successfully challenged, in his mind when he came to that conclusion. The appeal against Civil Suit No, 250/1 of 1965, whereby exchange of 1/22 share was questioned and it was asserted that it was a sale for Rs, 100 is 48/13 and in there the learned Appellate Court agreed with the view of the learned trial Court that the plaintiff-pre-emptor had not been able to prove payment of Rs, 100 for the transaction as alleged by him and it was, therefore, an exchange. The learned Appellate Court also by its order in Appeal No, 1/14 of 1969, maintained the order of the Civil Judge rejecting the plaint for want of deposit of pre-emption money observing that though there was a direction of the Court that Rs, 100 be deposited in cash and security be given with respect to the rest, the needful had not been done.
The learned Appellate Court elaborated that this order for deposit of the pre-emption money had been passed by the Court after taking into consideration the prayer of the plaintiff-pre-emptor that the subject-matter was already under litigation between the parties and in the early litigation be bad already deposited the pre-emption money.
6. It may here be mentioned that R. S. A. No, 59 is with respect to Civil Appeal No, 62/13 and Civil Suit No, 191/1 of 1965 ; R. S. A. No, 60 relates to Appeal No, 4s/13 of 1969 and Civil Suit No, 250 of 1965 and Civil Revision No, 27 of 70 relates to Civil Appeal No, 1/14 of 1969 arising out of rejection of plaint in Suit No, 133/1 of 1966.
7. The decision of the Courts below that the previous decree obtained by Jan Gul against the plaintiff was not obtained by fraud and rather it was the result of free consent, has not been seriously challenged and rightly too. It is positive fraud which has actually misled the Court which vitiates a decree but in this case there is no such evidence. The allegation of Niaz Gul that he consented to the decree when Jan Gul assured him on oath that he was not pre-empting for Qaza Khan or alienate the land to him subsequently, would not establish any fraud upon him and the Court, more so when I see that his two brothers who had been associated by him in the sale were not co-sharers and this resulted in the loss of preferential rights of Niaz Gul as provided by section 19 of the Pre-emption Act.
8. It remains to be seen if Jan Gul sold the land which he got from Niaz Gul to Qaza Khan subsequently. The case of the legal representatives of Niaz Gul is, that whatever Jan Gul got, he sold it straight away for an ostensible price of Re. 2,000 to Qaza Khan, but to defeat their superior pre-emptive rights, there was collusion between Jan Gul and Qaza Khan and they camouflaged the transaction in the following manner :-
(1) In less than nine months of mutation entered in Woo of Jan Out is pursuance of the pre-emption decree, he got entered on 6-4-1964 Mutation No, 1699 copy Exh. P. A./2 on File No, 191/1 attested on 15.5-1964 and thereby mortgaged all the Khasra Numbers except No, 447 for Rs, 2,000.
(ii) Within two months of the said mutation, Mutation Nos. 1705 copy Exhs. P. A./3 and 1704 copy Exh.
P. A./4 were procured and thereby 1/22 share in the disputed property was taken in exchange.
These Mutations were attested after about a month and simulateneously Mutation No, 1705, Fak Takmil in favour of Qaza Khan mortgagee in Khasras other than Khasra No, 447 was attested.
(iii) The Mutation No, 1723 copy Exh. P. A./6 on File No, 250/1 was entered on IS-9-1965 and this was for sale of what was loft in Khaera No, 447 and in the other six disputed Khasra Numbers for an ostensible price of Rs, 3,000. This mutation was not rejected on 18-9-1965 but simultaneously another mutation was entered which is 1725 copy Exh. P. A./7 on the said file on that very date and thereby the area was corrected.
' Quite evidently the result of all these three transactions is that by now the title of the disputed land has passed on to Qaza Khan from Jan Gul. All the mutations which have been effected during the pendency of Suit No, 191/1 unmistakably lend weight to the contention of Niaz Gul that as a matter of fact, Jan Gul had pre-empted the land for the benefit of Qua Khan and that no sooner he got it, he sold it and the mutations were in furtherance of the transaction which had been entered upon between the parties in April 1964.
9. The acquisition of 1/22 share by exchange as per Mutation No, 1705 copy Exh. P. A./3 in File No, 250/1 in return for 1/10 share in Khasra No, 188 as per Mutation No, 1704 copy Exh, P. A /5 was just a camouflage and not, in any case, real. 1 should like to fetes to the admission of Jan Gul in his statement on 25-4-1966, that he lives in Matoor while the land which he got by way of exchange from and that which he gave in exchange to Qua Khan, were located in Shakri Ali Khel. Furthermore, the land which he got is 7/10 miles away from his house in Matoor. It is true that he asserted that he had 10 kanals of land in Shakri Ali Khel, but he conceded immediately that in it his sisters were co- sharers to the extent of ore half. He also conceded that in that land his tarboor was also a co- sharer and he had 10 kanals of land. Again, the sons of his sisters were cultivating that land. He eventually admitted that he had not started construction of the house in the land which he got by nay of exchange from Qua Khan. When Qaza Khan was examined as D. W. 2, on that very day, he asserted that the land which he gave was in the village and that around it he had his houses but frankly conceded that he was not aware how much land Jan Gul had in Shakri Ali Khel. He then proceeded on to say that Jan Gul was cultivating the land himself. The claim of Jan Gul in his examination-in-chief that he got the land in exchange for Rasta is indeed preposterous when he admits that he got about 2 kanals of land and when he realised the vulnerability of his position, he added that he intended constructing a house thereon. This contention of Qaza Khan and Jan Gul stands thoroughly exposed by the fact that the possession of the disputed land presumably ever since the purchase from Kheran in the year 1962 is with the appellants. Had this not been the case, there would have not arisen any occasion for bringing a produce suit against the appellants as it will appear from the order of this Court dated 13-2-106. It will be seen that despite mortgage by Jan Gul with possession, Qaza Khan could not get the possession of the disputed land so far, and no sootier it is conceded that the possession was with the appellants, the consideration for exchange in favour of Jan Gul will automatically fail and this will be a pointer to the same being a subterfuge with the avowed intention of Qaza Khan to defeat the pre-emption suit of the appellants. Passing of the money is, no doubt, a piece of evidence which inevitably establishes that the transaction is not an exchange but vile but it appears to me that in a case where transaction is unreal, the difficulty of the pre-emptor is insurmountable. That the appellants could not prove, in the circumstances of this case, the almost impossible event regarding the payment of Rs, 100 by way of price for 1/22 share in the disputed land, becomes quite understandable. What I want to emphasise is that the transaction was for himself and not for any body else and that Niaz Gul had deposed that he had paid Rs, 1,600 and it was, therefore, that the case was decreed in his favour on payment of Rs, 1,600.
This affords a background which lends weight to the contention of the appellants that there was a collusion between Jan Gul and Qaza Khan from the start to the finish. In the conclusion that the disputed Khasra Numbers included Khasra No, 447, were told by Jan Gul in 1964 and that the subsequent mutation of exchange as also for the sale of equity of redemption were just paper transactions. I am fortified by the all important fact that in January 1964, Jan Gul got this very land for Rs, 1,600. How could that land become worth Rs, 5,000 within less than a year and nine months, more so when the market value has been put by the patwari in his statement at Rs, 1,740. For the reasons I am in full agreement with the observations of the learned trial Court in Civil Suit No, 191/1, though recorded not under the specific issue, namely Issue No, 7, but under Issue No, 2 and which read ' It is really strange that a person accepts land worthy less than Re. 1,600 as security for a sum of Rs, 2,000. The same land was valued at Rs, 1,600 on 26-9-1963 and after a lapse of about eight months a lesser portion of the same land fetches more than its price as a security. The land has not been irrigated by a channel or a well has been sunk that its price should immediately go up. So I am unable to believe that the transaction is a mortgage, but it is a sale pure and simple. Issue decided accordingly.
10. I must place on record that there has been misreading of evidence and the Courts below have failed to do justice by examining various mutations in isolation which as a matter of fact is in furtherance of a single transaction.
11. On the view of the matter that I take, I am clear in my mind that Civil Suit No, 133/1 was misconceived, as the order of the trial Judge rejecting the plaint, shows. This suit had been brought by the appellants by way of abundant caution and it would have been more appropriate exercise of discretion if the learned trial fudge had not insisted on the deposit of the pre-emption money since it had already been deposited in connection with Suit No, 191/1 by that very party.
12. To sum up I will grant the appellants a decree for possession b pre-emption with respect to half share in Khasra Nos. 448, 195, 445 and 451 and 1/6 share in Khasra Nos. 220, 446 and 447 in village Ali Khel on payment of Rs, 1,740. The pre-emptor to deposit the balance of the amount within two months failing that his suit will be dismissed. I will also grant a decree for declaration to the appellants that exchange Mutation No, 1705 was a sham transaction and was, as a matter of fact, part and parcel of the same transaction given the colour of a mortgage by Mutation No, 1699. In the conclusion that the exchange was a sham transaction, I am also supported by the fact that Jan Gul cared not to contest the proceedings brought to question the exchange. If he had any stakes in the matter be would have contested. The revision-petition is also accepted and the order of the learned Court below rejecting the plaint is set aside. In view of the peculiar circumstances of the case, parties are left to bear their own costs.