1987 PLP 1277 (SCMR)

(b) Punjab Pre‑emption Act (I of 1913)‑‑ ‑‑‑S. 15‑‑Suit for Pre‑emption‑‑Muhammadan Law‑‑Gift‑‑Sale‑‑Record showed that donee was not related to the donor rather belonged to ; different village and tehsil and there was nothing to show that donor was, in any way, so obliged to the donee that she could give him b, gift such a valuable property‑‑Fact that donor had adopted the done as a son had also not been established‑‑Donor, held, had in sold the lands to donee but in order to frustrate the right of respondent transactions were given the colour of gift. ‑‑[Muhammadar Law]. Sh. Hamid Mukhtiar, Advocate Supreme Court and Ch. Manzoor Ilahi, Advocate ‑on‑Record for Appellant. Ch. Ghulam Sarwar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Respondents. Date of hearing: 29th April, 1987. ALI HUSSAIN QAZILBASH, J.‑‑Leave in these appeals was granted to examine whether the High Court in second appeal has justifiably interfered with the findings of fact that an ostensible gift was in fact a sale. Certain lands entered in Khata Nos.10 and 12, situate in Mian Ali Faqiran estate, Tehsil and District Sheikhupura, owned by Mst. Fatima were transferred in the name of Muhammad Bashir appellant as gift vide Mutations Nos.49 and 50 attested on 20‑6‑1970. These transfers were pre‑empted by one Bahawal who alleged that in order to defeat his superior right of pre‑emption the transactions have been given a colour of gift. As a result of the contest the trial Court vide its judgment dated 16‑3‑1974 held that Bahawal respondent has failed to establish that the gifts were in fact sale and thus, dismissed his suits. The appeals filed by Bahawal were also dismissed by the learned District Judge, Sheikhupura, on 5‑3‑1976. Bahawal respondent was, however, successful in the High Court where his suits were decreed.

3. We have heard the learned counsel for the parties. As the record stands, we think, the appeals have no merit inasmuch as both the learned trial and the first appellate Courts have failed to examine the evidence on record in its true perspective. In this case, from the side of Bahawal respondent as many as seven witnesses have appeared. Of them, besides Bahawal respondent (now represented by his L. R's) Chiragh and Nazir Ahmad are the lessees of the lands in dispute, Muhammad Akram P.W.5 is the Patwari who had entered the mutations, and Rehmat Khan P.W.6 had identified the parties at the time of attestation of mutations. The appellant appeared as his own witness and produced two official witnesses. From the careful perusal of the statements of the witnesses it has become quite clear that Mst. Fatima had in fact sold the lands to Muhammad Bashir appellant but in order to frustrate the right of the respondent the transactions were given the colour of gift. The record also shows that the appellant is not related to Mst. Fatima, he belongs to a different village and tehsil and there is also nothing on the record that Mst. Fatima was, in any way, so obliged to the appellant that she would give him by gift such a valuable property. The fact that Mst. Fatima had adopted the appellant as a son has also not been established. The view that we take in the matter is that these appeals have no force and are dismissed with costs. M.B.A./M‑100/S Appeals dismissed.