MIAN SAQIB NISAR, J. -- Suit for pre-emption filed by the. Petitioners was dismissed by the learned Civil Judge vide judgment and decree dated 25.1.2001. Appeal filed by the petitioners also failed on 26.4.2001, hence this revision petition.
2. Briefly stated the facts of the case are that one Muhammad Khan vide exchange mutation No. 1792, dated 29.12.1974, transferred the suit land measuring 45 kanals and 4 marlas to Daulat Khan, the respondent. The petitioners on 30,5.1975, brought a suit for pre-emption claiming a superior right on the basis of being collaterals of Muhammad Khan and also the Pattidari, and owners of the estate. An ex-parte decree was passed in favour of the petitioners on 10.10.1975. However, on an application moved by the defendant, this decree was set aside. Earlier, the suit was dismissed by the Trial Court in the light of Said Kamal's case, reported as PLD 1986 SC 360. Appeal filed by the petitioners was also dismissed, however, in a revision brought before this Court, the following order was passed:- "Meanwhile, Punjab Pre-emption Act, IX of 1991 has come to take effect. By virtue of Section 35 thereof, the impugned decree of dismissal passed on 14.7.1988 in the suit of the petitioners, as also its affirmance on 14.3.1989 in the Appellate Court, have come to loose their legal effect, therefore, today there is no adverse decree in existence against the petitioners and their suit has become liable to be decided afresh, in accordance with law.
In view of the above, this revision petition has become infructuous and is accordingly dismissed. No order as to costs."
3. Thereafter, the learned Civil Judge, while proceeding on merits of the case, has again dismissed the suit primarily on issue No. 1, holding that the transaction in question is not a sale, rather it is an exchange, which is not pre-emptiable under the law. As regards the issue of superior right is concerned, same was found in favour of the petitioners. Aggrieved, the petitioners filed an appeal before the learned Addl. District Judge, Gujrat, which has been dismissed on 26.4.2001. There is concurrent finding of fact recorded by the two Courts below that the transaction in question is an exchange.
4. The learned counsel for the petitioners by relying upon Begum and others Vs. Muhammad Yakub and another (16 All. 344), Janki Vs. Girjadat and another (7 All. 482), Dig&st of Muhammadan Law by Baillie page 475, paragraph 232 Of Muhammadan Law by Mulla, Hedaya by Charles Hamilton pages 241 and 243 and 1986 SC para 603 at page 639, contends that according to the above law, an exchange of the immovable property by two Muslims is a sale and, therefore, is pre-emptiable.
Resultantly, even conceded without prejudice, that the determination of the two Courts below that the transaction is in the nature of an exchange, still, the petitioner could validly preempt the same, therefore, view taken by the Courts is illegal and erroneous.
5. It is further contended that the two Courts have misread the evidence on record, particularly the statement of PW-1 Peer Muhammad, PW-3 Hayatullah and PW-4 Sultan. The collective reading of these statements in clear term establishes that the sale transaction between Muhammad Khan and Daulat was settled at the price of Rs. 4,500/-, which amount was paid by the later to the former. However, the device of exchange was used to abortively prevent the petitioners from pre- empting the former..
18. I have heard the learned counsel for the petitioner. As regards the first submission, suffice it to say that the present suit has been brought under the provisions of Punjab Pre-emption Act, 1913 (the Act). Section 4 of the Act confers .Upon a person a right to pre-empt the "Sales" of the properties mentioned in the section. According to Section 3(5), the definition clause of the Act, a sale has not been defined, but it does not .Include the categories specified in sub-clauses (a) and (b), therefore, necessarily, the definition of sale given in the Transfer of Property Act, 18:82, the law then in force , has to be adhered and applied According to Jsudge..
"A sale of an immovable property is transfer of ownership of exchange for a price paid or promised or part-paid and part-promised."
Thus, for the purpose of construing, if an alienation is a sale, the payment of price is sine qua non. It may be pertinent to state here that as per Section 118 of the Act, exchange has been separately defined as under:- .
"When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an "exchange".
From the reading of the two definitions, it is clear that a vital distinction in the nature of transaction as a sale and exchange of an immovable property has been made by the legislature itself.
According to Section 4 of the Act, exchange is not amenable to a pre-emption action. Rather second part of this section envisage that nothing shall prevent a Court from holding that an alienation pertaining to be other than a sale is in fact a sale. This clearly spells Out the intention of the legislature not to allow a preemption claim, of any transaction other than a sate, it is undoubtedly manifests that it is only the sale, which has. Been made subject of pre-emption action and no other transaction including exchange of an immovable property is pre-emptiable.
19. The argument of the learned counsel for the petitioner, that in case where the transaction has been effected between Muslims, as per Shariat Law, an exchange is to be considered as a sale and, therefore, pre-emptiable, it may be pertinent-to state that the provisions of the Act are applicable to all the persons having right of pre-emption under the Act, which includes Hindus, Sikhs and persons of other religions. There is no distinction in the Act. That if any transaction has been made by Muslim. Some other definition of the sale, except that provided in Section 54 of the Transfer of Property Act should be applied.
20. It may also be stated that the petitioners have neither asserted their right of pre-emption nor it was permissible at the relevant point of time to pre-empt the sale of the property under the Muslim Common Law, therefore, any definition of sale under the Muslim Common Law cannot be imported in the Act for laying down a different scale and definition of the pre-emption of the sale in cases of Muslims transferors/transferees and the pre-emptor.
21. Even otherwise, the submission of the learned counsel that an exchange of the property by a Muslim to a Muslim is a sale within the meaning of the law cited by the learned counsel, is a moot point, but in the instant case as I have approached to decide this petition for different reasons, therefore, it is not expedient to dilate on this aspect of the matter.
22. As regards the other plea of the learned counsel for the petitioner that the statements of the PWs referred to above have been misread/non-read by the Courts below, suffice it to say that both the Courts have taken into account these statements, considered and thoroughly discussed and on the basis of proper appraisal and appreciation of evidence have given a factual conclusion, that the transaction in question was a sale and not an exchange of the property. No significant misreading and non- reading of evidence has been pointed out by the learned counsel for the petitioner, it is settled law that re-appraisal of the evidence by the Revisional Court to upset a concurrent finding of fact, is not permissible.
In the light of above, I do not find any error in the judgments and decrees of the Courts below calling for interference in the revisional jurisdiction, therefore, this revision petition has no merits and is hereby dismissed.