DGMENT MIAN SAQIB NISAR, J.--- The petitioner's suit for pre-emption was allowed by the learned Trial Court vide judgment and decree dated 17.10.1998. Appeal filed by the respondent has been accepted and the judgment and decree of the learned Trial Court has been set aside.
2. Briefly stated the facts of the case are that vide registered exchange deed dated 17.2.1988 (Ex.P.2/Ex.D.10), the respondent exchanged his land measuring 22 kanals and 13 marlas situated in village Shadiwal District Gujrat with the suit land measuring 41 kanals and 3 marlas. The petitioner/plaintiff on 11.2.1989, brought a suit for pre-emption alleging that the exchange in fact is a sale and that on learning about this fact, the petitioner made Talb-e-Muwathibat and also asserted Talb-e-Ishhad verbally in the presence of two witnesses and issued a notice in writing to the respondent and the learned Trial Court framed the following issues:-
(1) Whether the suit is not maintainable in, its present form? OPD
(2) Whether the plaintiff has no locus standi to file this suit? OPD
(3) Whether the plaintiff is estopped from filing of suit? OPD.
(4) Whether the suit is bad for non-joinder of necessary parties? OPD
(5) Whether the suit is not correctly valued for the purposes of Court-fee and jurisdiction? OPD
(6) Whether the suit is time-barred? OPD.
(7) Whether the defendant spent Rs.10,000/- on development of suit land? Whether he is entitled to receive the same in case the suit is decreed? OPD
(8) Whether the disputed transfer is sale under colour of exchange ? OPP
(9) If issue No. 8 is proved in affirmative then what was the consideration of disputed transaction or otherwise what was the market value of the dispute:I property at the time of disputed transaction?
OPP.
(10) Whether the plaintiff has superior right of preemption qua the defendant? OPP
(11) Whether the plaintiff has fulfilled the requirements of talbs? OPP ( 12) Relief.
Parties produced their evidence and the learned Trial Court, by giving finding on issues Nos. 8, 10 and 11 in favour of the petitioner decreed the suit, however, finding on issues Nos. 7 and 9 were against him. Appeal filed by the respondent was allowed and finding on the material issues have been reversed, while that filed by the petitioner has been dismissed by the learned Additional District Judge, Gujrat vide judgment dated 28. 10. 1 999, hence this revision petition.
3. Learned counsel for the petitioner has argued that the learned Court in appeal has erroneously reversed the findings of the learned Trial Court on the material issues by misreading and non- reading the evidence on the record. It is contended that the petitioner had proved that the suit land and the open with which, it was allegedly exchanged, are not corresponding in value and the location and thus it was a sale but, with a view to prevent the petitioner from filing a pre- emption action, the parties to the sale collusively had given it a colour of exchange. The finding of the learned Trial Court that the transaction in fact is a sale is based upon proper reading of the evidence and for sound reasoning, while that of the learned Court in appeal suffers from erroneous reading of the evidence. It is further submitted that the Court of appeal has illegally reversed the finding of the learned Trial Court on the issue of talbs, when it was proved on the record by the petitioner that on learning about the sale, he immediately made Talb-e-Muwathibat and also asserted Talb-e-Ishhad in the presence of two truthful witnesses, followed by a notice in writing in that behalf. It may be pertinent to state here that the present suit was filed during the interregnum, when there was no statutory law of pre-emption in force in the Province of Punjab, therefore, the requirements according to the learned counsel for the petitioner under the Islamic Law with regard to taibs, were duly met.
4. I have heard the learned counsel for the, parties.
Only for the reason that the areas of the two parcels of land, which have been exchanged, are not equal and these are not compatible located and the value also does not corresponds, by itself is no conclusive proof of the fact that transaction, which was entered into by the respondent with his counterpart, was necessarily a sale and not the exchange, particularly, when the exchange has been effected through a registered document and the requisite incorporation has also been made in the revenue record. The petitioner has miserably failed to lead any direct and positive evidence to the effect that the parties to the exchange entered into a sale transaction and collusively gave it a colour of exchange. In this behalf, it may be stated that the petitioner, while appearing as a witness, admitted in the cross-examination that he does not know about the nature of the transaction, the time and the place, and the negotiations, which took place between the parties to the exchange; price if any was settled or not. He categorically mentioned that Fateh Muhammad PW-3 in fact apprised him that the transaction is a sale. When Fate Muhammad appeared as a witness, he attributed that one Muhammad Yousaf told him that the suit land was sold.
Muhammad Yousaf has not been examined by the petitioner. Both these PWs, who are the key witnesses to prove the transaction being a sale, have admitted their indirect knowledge about the factum of sale and all what they had deposed is hearsay in nature, which evidence is inadmissible under, the Qanun-e-Shahadat Order, 1984. According to judgment reported as Glulam Hussain' v.
Jam. Allah Dad through legal heirs (PLD 1989 Lah. 73), "the contract of exchange entered into by the parties, could not be brushed aside merely on the basis of conjectures and surmises. Disparity in value of properties, is not a strict equation to hold that exchange is in fact a sale". As per A.I Muhammad v. Malik Sanwal and others (PLD 1961 (WT.) Pesh. 62), "in order to prove that a transaction of exchanGe is a sale, evidence of strict and strong character must be led by the person impugning ostensible nature of the sale." in Saudullah Khan and others v. Qalandar and others (1984 SCMR 1412), it is held that "in the absence of extrinsic evidence to establish that the transaction is a sale, merely on the basis of a price, which a land in dispute could fetch or improbability of exchange of one kanal in lieu of three kanals, is not a strong criteria to hold that the transaction is not an exchange, but a sale". Learned counsel for the petitioner, though has relied upon AIR 1934 Lah. 823, PLD 1941 Pesh. 14, AIR 1936 Lah. 234 and 1997 SCMR 197, to argue that where the value and the areas of the exchanged properties are disproportionate, it should be assumed that the transaction of sale has been given a colour of an exchange to defeat the right of pre- emptor. But, I find these dictums distinguishable on their own facts. To my mind, in order to controvert the ostensible nature of transection of an exchange and to prove it as a sale, the petitioner at least was required to lead some evidence to show as to when the' parties to the exchange agreed for the sale, but with an object to circumvent the right of the petitioner, they device the transaction as an exchange. There is no proof of the date, the day, the time, the place and the nature of the negotiations held between the two exchangers qua the sale. Even this is not proved if any price was settled and was paid by the respondent and in whose presence. The above-mentioned conspicuous omissions have serious reflection upon the case of the petitioner.
Two statements of the PWs, referred to above, are not sufficient to prove the fact of sale, rather can be discarded on the principle of hearsay evidence, therefore, I am constrained to uphold the finding of the learned Court in appeal that the transaction is in the nature of an exchange and not sale. .
5. Now coming to the other question, whether petitioner had made talbs in accordance with law. As mentioned earlier, the present suit was filed during the period of interregnum and the petitioner necessarily was not required to prove Talb-e-Ishhad according to the requirement of Act, 1991, but still, in order to establish of having made the Talbs; confidence inspiring evidence, should have been led by the petitioner. As has been highlighted in the judgment of the learned Court of appeal, there are inherent discrepancies in the statements of the PWs. Suit land was exchanged about seven months before the alleged knowledge of the petitioner, but neither in the plaint it was asserted nor in evidence, the petitioner has been able to prove the exact day, date and time as to when he. Learnt about the transaction and made Talb-e-Muwathibat. Likewise the evidence about Talb-e-Ishhad is also not of the quality, which is required to prove this talb, therefore, the finding of the learned Court of appeal on the issues of talbs, is also upheld.
6. Learned counsel for the respondent has, however, attempted to argue that the suit of the petitioner was barred by time on the ground that exchange had taken place on 17.2.1988, whereas the present suit was filed on 11.2.1989 and, therefore, suit having been filed after four months was beyond limitation. I do not intend to go into this question for the reason that both the Courts below have held that the suit of the petitioner was within time and such concurrent finding of fact, has not been challenged by the respondent through a revision before this Court. Even otherwise, I do not find any infirmity in the finding of the learned Courts below on the issue of limitation. .