' Facts giving rise to the instant revision petition are to the effect that plaintiff lbrar Hussain (petitioner herein) had instituted a suit for possession through pre-emption on a sale of land measuring 2 Kanals, 13 Marlas situated in Khasra No,1211, Khata No,365, Khatoni No,1124 of Mauza Chhanni, Tehsil and District Gujrat transferred through sale of Mutation No,4887 attested on 27-9- 1999. This mutation was a transaction of exchange between Ghulam Haider and Khadim. Hussain, predecessor-in-interest of the present petitioner.
2. I have heard the learned counsel for the petitioner at preliminary stage, therefore, I have decided to dispose of this case as a notice case.
3. The plaintiff claimed that Khadim Hussain had purchased the property through sale and to defeat the right of the preemption of plaintiff, it was entered as an exchange. The suit was contested by the vendee/defendant Khadim Hussain who filed his written statement denying the averments of the plaint, taking a specific stand that the Mutation No,4887 was an exchange and not a sale and he denied the passing of the consideration or Rs,2 lacs.
4. From the factual controversy appearing on the pleadings of the parties, the trial Court framed the following issues:--
(1) Whether the property in dispute was sold and was not exchanged? OPP
(2) Whether Rs,2,00,000 is the actual sale price? OPP
(3) Whether the plaintiff has superior right of pre-emption? OPP
(4) Whether the requisite Talabs have been made in accordance with law? OPP
(5) Whether the plaintiff is co-sharer in the suit property? OPP
(6) Whether the plaintiff is entitled for decree as prayed for? OPP
(7) Whether the property was exchanged in good faith? OPD
(8) Whether the suit is liable to be dismissed? OPD
(9) Relief.
5. After recording and appreciating the evidence of the parties, the trial Court vide its judgment and decree dated 5-8-2002 dismissed the suit. Feeling aggrieved the present petitioner preferred an appeal which came up for hearing before the Additional District Judge, Gujrat, who vide his judgment and decree dated 16-10-2002 dismissed the appeal and confirmed the finding of the trial Court.
6. The learned counsel for the petitioner contended that there is sufficient evidence on the record to establish that the transaction was a sale transaction. Failure of 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.
Reliance has been placed on the case of Mst. Miraj Bibi v Mst. Azim Khatoon and others 1997 SCMR 1892. Further contended that the alleged exchange property by Ghulam Haider and Khadim Hussain vendees are not of equal value. One property is situated very close to the village, while the other is far away which is sufficient to infer that the transaction was not an exchange in reality.
7. On the other hand, learned counsel for the respondents has vehemently opposed the arguments of the learned counsel for the petitioner and supported the judgment and decree passed by both the Courts below. Further contended that there is a concurrent finding of fact against the petitioner which cannot be interfered with by this Court in exercise of its revisional jurisdiction.
8. I have heard the arguments of learned counsel for the parties and perused the record.
' And if any of the elements is missing it shall not be a transaction of sale.
9. The question, that 'boils down', for determination in this case as to whether the property in dispute was sold and was not exchanged. From plane reading of the mutation in dispute Exh.P.5 it reveals that both the transferors i.e, Ghulam Haider and Khadim Hussain appeared before Revenue Officer and they accepted the exchange of property with each other. There is no mention of the passing of the consideration.
10. The exchange has been defined in section 118 of the Transfer of Property Act 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 'exchange'."
11. The essential character of a transaction of exchange is a mutual transfer of ownership of property by two persons. Where there is a transfer of ownership by one of the parties only, and not by the other the transactions not an exchange, as there is no mutual transfer of ownership. In this respect reference can be made to the case of Tahir Hussain reported as PLD 1978 Karachi 182.
Section 54 of the Transfer of Property Act envisages that a sale is a transfer of ownership in exchange for a price paid or promised or part paid or part promised and is complete on execution of the sale-deed. Essential elements of sale are (i) the parties, (ii) the subject-matter, (iii) the transfer of or conveyance, and (iv) price and consideration.
12. Plaintiff/petitioner claims the transaction in dispute as a sale. The onus lies on him. Appearance of transaction is a 'device'. Not fictitious but a mode adopted to defeat the right of pre-emption and in the instant case that evidence on the record has proved that it was a transaction made between the two persons and they have adopted a valid device which is recognized by law in case of Ahmad Yar and another v. Muhammad Aslam 1981 CLC 527 and Ali Muhammad v. Malik Sanwal and others PLD 1961 (W.P.) Peshawar 62 wherein it has been held that where the vendees were anxious to take certain land and in order to avoid any pre-emption suit they resorted to the device of exchange. It was held that there was nothing illegal in this device which the law permits.
Preemption can be defeated by legitimate devices like exchange and gifts. All that is necessary is that the device must possess all the essentials of exchange and gifts. If the law exempts exchange from pre-emption it is open to a person to resolve the exchange in order to save his land from pre- emption.
' The allegation that the transaction is different from one described in the deed the circumstances indicate its different B nature must be very strong character. For a transaction to be a sale it is necessary that 9 the Honourable Judge of the Peshawar High Court held that "right of pre-emption would arise only in respect of the sale of the land and property---Where, however, a transaction is ostensibly disguised other than as sale and the pre-emptor claimed the same as sale, the Court must strike issue whether the transaction is a sale placing the onus on the pre-emptor to prove the issue. In the instant case the Issue No,1 was framed whether the land was sold or was an exchange from the evidence available on the record produced by the petitioner which is not proved that the transaction was a 'disguised', as a sale. There is a concurrent finding of the Courts below that the mutation in dispute was an exchange and this Court in exercise of its revisional jurisdiction cannot interfere with the concurrent findings of fact. Reliance can be placed to the case of Gulzar Khan v.
Isa Khan 1993 SCMR 2099, Nazir Ahmad v. Boota 1989 SCMR 450, Riaz v. Muhammad Saleem 1989 SCMR 1491 and Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 D SC 291.
14. From minute scrutiny of entries in the Revenue Record, I find in the mutation of transaction of exchange in question a Rappat Roznamcha No,121 in this regard has also been entered in Register Roznamcha Waqiati, the entry of which has been made in Column No,1 of the mutation in dispute.
The petitioner has not been able to establish that the transaction of exchange was a fictitious and in genuine. The oral statements of P.Ws. Cannot contradict the entries of the mutation made by the Revenue functionaries. The transfer of possession in favour of Ghulam Haider on land measuring 2 Kanals, 13 Marlas through mutation on behalf of Khadim Hussain has been delivered which is reflected in column of possession in the record of rights pertaining to the year15. From the above circumstances no option is left with the Court but to infer that the mutation in dispute was an exchange and not pre-emptible. Reliance in this context can be placed on the case of Syed Nazar Hussain Shah and another v. Shah Muhammad and 3 others 1998 SCMR 2755.
16. Learned counsel for the petitioner has not been able to point out any illegality, jurisdictional defect, non-reading and misreading of evidence, in the impugned judgments and decrees calling for interference by this Court, hence are unexceptionable.
17. For the foregoing reasons this revision petition being devoid of force is dismissed.