1992 PLP 2433 (CLC)

This First Appeal under Order 43, Rule 1 (u) of C.P.C. by vendee-defendants is from the order dated 7‑12‑1983 by which the learned first Court of appeal accepted the civil appeal filed by the present appellants and remanded the case back to the Court of trial for the purpose of deciding issues No.2 and 3 (regarding the sale price/market value/price of the suit property and affirmed the finding of the Court of trial on all other issues.

2. The facts, briefly stated, giving rise to this appeal are that Rahim Bakhsh and Abdul Hamid (hereinafter called appellants) were owners in possession of 13 Kanals 10 Marlas situated in Revenue Estate Mauza Loonwala Tehsil Liaquatpur District Rahim Yar Khan, while Khan Muhammad was owner in possession of 16 Kanals 10 Marlas in Mauza Chupri Chattan Shah situated in the same Tehsil. By means of registered deed of exchange dated 13‑12‑1977, the appellants obtained the land situated in Mauza Chupri Chattan Shah (hereinafter described as suit land) in exchange of that land in Mauza Loonwala. On 3‑12‑1978 Allah Jiwaya (herein respondent No.l) filed a pre‑emption suit against the appellants, claiming therein that the appellants had, in fact, purchased the suit land for a sum of Rs.5,000 and had got framed deed of exchange in order to defeat the superior right of pre?emption of plaintiff.

3. The suit was contested. In written statement the appellants not only reiterated the nature of transaction as described in the deed of exchange, but also denied the superior right of pre‑emption. On the pleas of the parties, as many as eight issues were framed out of which the arguments were addressed by the learned counsel for the parties on issue No.l which is as follows:‑‑ "Whether the impugned transaction is that of sale and is pre‑emptible? OPD:"

4. The parties led their oral as well as documentary evidence in support of their respective pleas. Upon the examination. of the same, the learned Court of trial decided all the issues in favour of respondent No.l. On the question of exchange, it was found that the deed of exchange was mere disguise and the appellants, had, in fact, purchased the land from Khan Muhammad in consideration of Rs.5,

000. On this conclusion the learned Court of first instance decreed the suit. On appeal the learned Additional District Judge upheld the finding of the trial Court on issues Nos.l, 4, 5, 6 and 7, but deferred on issues Nos.2 and 3 and held: "The findings of the trial Court on issue No.2 cannot be maintained. The plaintiff has not produced any witness in whose presence the sale price was actually paid. Muhammad Rafiq, P.W.1 did not witness the passing of the money although he was present at the time of the registration of the instrument. The solitary statement of Ghulam Sarwar P.W.3 is not sufficient to prove that the vendees had purchased the suit land in consideration of Rs.5,000, therefore, the finding of the trial Court on issue No.2 is set aside which would naturally require the determination of market value. Both the parties have adduced no evidence on this issue. The findings of trial Court on other issues have not been challenged. Therefore, I need not discuss the remaining issues." On this conclusion the appeal was accepted and the case was remanded back to the Court of trial for decision afresh on issues Nos.2 and 3 only.

4. While assailing the, impugned order, the learned counsel for the appellants raised following points:‑‑ Firstly: That the two Courts below have decided issue No.1 with material irregularity by adopting approach which is not warranted by law. According to the learned counsel the Courts below had arrived at conclusion ‑on account of non‑reading and misreading of material evidence on the record. Elaborating further, it was contended that Khasra Girdawari (Exh.D/2) clearly demonstrated that the possession of the land in Mau7a Loonwala was given to Khan` Muhammad/Exchangee. Similarly the statements , of Khan Muhammad D.W.1 Muhammad Bakhsh, D.W.2 and Rahim Bakhsh, D.W.'3 ftflly proved the exchange. Reliance was placed on Faqir Shah and others v. Khalo Khan and others (PLD 1951 Peshawar 14), Bhai Khan‑v. Faizullah Khan (AIR 1935 Peshawar 191); Darwesh and another v. khuda Dad through Legal Heirs (PLD 1987 Lahore 123); Gul Muhammad v. Sabz Ali Khan and others (AIR 1919 Lahore 127): and Mcgha Ram v. Makhan Lal,(1912) 13 IC

667. Secondly: That the two Courts below have not correctly comprehended and followed the rule laid down in Ali Muhammad v. Malik Sanwal and others (PLD 1961 (W.P) Peshawar 62), wherein it was held that "Court should hesitate, in the absence of very strong evidence to the from rejecting documents which have been, executed between contrary the parties with free consent and under which they have parted with their rights in their??????? properties. Written documents which appear to 'have been executed without tinge of fraud and compulsion are entitle to great respect, in order to confer security on human dealings. If on the mere allegations of persons protested in destroying a transaction, the transaction is destroy4 faith of people in the sanctity of written agreements will be???? shaken, and there will be no assurance to the parties to the agreement that it will survive baseless attacks and will remain effective. It will be tyranny to the people if they are made to live in a state of affairs, under which solemn human dealings are deprived of security of survival." Continuing further, it was argued that there was sufficient evidence in quality and quantity to establish that the appellants had obtained the suit land by way of exchange from Khan Muhammad D.W.1 Thirdly: That the finding of the Courts below on issue No.1 was based upon conjectures and surmises, therefore, merited to be set aside.

5. On the contrary the learned counsel appearing on behalf of respondent No.1 supported the impugned decision. At the outset, he raised two preliminary objections regarding the maintainability of instant FAO. Firstly; that the order of remand was neither under Rule 23 nor Rule 25 of Order 41 of C.P.C. as such the order fell within the ambit of section 151, C.P.C. and was hence, not appealable under Order 41, Rule I (u), C.P.C. Reference was made to Mst. Khando and others v. Yousaf and others (PLD 1982 Pesh. 151) Amir Abdullah, etc. v. Hakim Abdul Rahim Khan (NLR 1979 Civil 45) and Mst. Nooran and another v. Shah Muhammad alias Shabu (PLD Lahore 433). Secondly, that the concurrent conclusion of the two Courts below that transaction embodied in exchange deed was, in fact, sale and not exchange, was inference of fact and was not open to interference in the jurisdiction of this Court. Reliance was placed on Ahmad Yar and another v. Muhammad Aslam (1981 CLC 527) and Haji Said Muhammad Karam Shah v. Noor Ilahi Khan and another (PLI) 1962 (W.P) Peshawar 44). 6.???????? From the above narration, the questions emerging for determination are as follows‑ (1) Whether the impugned order has neither been passed under Rule 23 nor Rule 25 of Order 41, C.P.C. and is, therefore, not appealable under Order 43, Rule 1 (u) of C.P.C.? (2) Whether the concurrent finding of fact reached by the two Courts below on issue of exchange is based upon misreading, non‑reading of evidence and is, therefore, not sustainable in the eyes of law?

7. As regards the first question, the answer is furnished by Rule 23‑A of Order 41, C.P.C. which reads as under:‑‑ "Where the Courts from whose decree an appeal is preferred has disposed of the case otherwise than on a preliminary point and the decree is reversed in appeal, and a retrial is considered necessary the appellate Court shall have the same powers, as it has under Rule 23."

8. A plain reading of this rule makes it clear that any order of remand which is not covered by Rules 23 or 25 of Order 41 of C.P.C. is covered by this rule if the appellate Court while passing the order of remand disposes of the appeal finally. This view is fortified in Nazir Ahmed v. Dr. Taj Mahal Begum. (AIR 1940 Lahore 63), Dr. Kishan Singh v. Bachan Singh and others (AIR 1942 Lahore 201) and Karim Bakhsh v. Qadir Bakhsh and another (PLD 1954 Lahore 228). Applying these principles to the facts of present case, it is quite clear that the appellate Court, while passing the impugned order, fatally disposed of appeal and sent the case back to the first Court for decision afresh on issues Nos.2 and 3. 1 have, therefore, no hesitation in coming to the conclusion that the appeal under Order 43, Rule 1(u) of C.P.C. filed by the appellants was competent.

9. Reverting to the second point, I feel it necessary to re‑state three well settled principles regarding enforcement of right of pre‑emption. Firstly; the right of pre‑emption in the words of Mr. Justice Mahmud" is not a right of repurchase, either from the vendor or from the vendee, involving any new contract of sale but it is simply a right of substitution, entitling the pre‑emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It is, in effect, as if in a sale‑deed the vendee's name were rubbed out and the pre‑emptor's name inserted in its place. Otherwise, because every sale of a pre‑emptional tenement renders the right ‑of pre‑emption enforceable in respect thereto, every successful pre?emptor obtaining possession of the property, be the so‑called repurchase from the vendee would be subject to another pre‑emptive claim dating, not from the original sale, but from such repurchase, a state ‑of things most easily conceivable where the new claimant is a pre‑emptor of a higher degree than the pre‑emptor who has already succeeded. The result would be that pre?emption litigation could never end." Secondly; it is not forbidden by vendee to circumvent the law of pre‑emption by taking a transfer which falls short of a sale though ii may have the same effect as that of sale. In short device is permitted but it does not preclude the pre‑emptor to show that device in substance is disguise. This problem had arisen before the superior judiciary in number of cases namely; Tara Chand v. Baldeo 117 Punjab Record 1890, Gul Muhammad v. Sabz Ali Khan (AIR 1919 Lahore 127) and Than Singh and others v. Nandu Kirpa Jat and others (AIR 1978 Punjab and Haryana 94). After the survey of the case‑law, the Full Bench in Than Singh's case (supra) enunciated following principles:‑‑ (1) That it is open to the plaintiff (pre‑emptor) to establish that the transaction in suit is in reality a sale and not an exchange or gift and that the Courts can enquire into the true nature of such a transaction. Under the Evidence Act also, there is no bar to lead evidence to prove cc rtain transaction as a sale; (2) that the vendor can defeat the right of the pre‑emptor by all legitimate means; (3) if two views are possible, then the one which defeats the right of the pre‑emptor has to be accepted; and (4) if the Courts below have arrived at a finding that a certain transaction is a sale, exchange or gift, as the case may be, then this finding is not open to scrutiny in the second appeal." The dictum laid down in Than Singh's case(supra) was approved by the Division Bench of this Court in Muhammad Sadiq and 2 others v. Barkat Ali and 4 others (1990 CLC 533). Thirdly, that the contracts entered into by the parties cannot be ignored/brushed aside merely on the basis of conjectures and surmises. This rule has been firmly laid down in the decisions of the superior Courts of Pakistan. Reference be made to Bhai Khan v. Faizuflah Khan (AIR 1935 Peshawar 191), Ali Muhammad v. Malik Sanwal and others (PLD 1961 Peshawar 62), Shah Wali v. Allah Rakha and another (PLD 1982 SC 17), Salahud Din Khan etc. v. Qalandar etc. (1984 SCMR 1412) and Ghulam Hussain v. Jam Allah Dad through Legal Heirs (PLD.1989 Lahore 73).

10. In the light of aforesaid principles I herein proceed to determine question No.2. The case of respondents hinges upon Muhammad Rafique (P.W.1), Abdul Qadir (P.W.2), Ghulam Sarwar (P.W3), Allah Diwaya (P.W.4) and Allah Jiwaya (P.W.5). Muhammad Rafique P.W.1 is the star witness of respondents. He is attesting witness to deed to exchange. He stated that the parties to contract, in fact, negotiated the sale of suit land in lieu of RsX000 in his presence, but got it recorded as exchange in order to defeat the superior right of pre‑emption of respondents. In cross‑examination he admitted that no consideration was passed in his presence and that on the asking of the~ parties he had lent his signature to this questioned document. In my humble estimation on account of the conduct, no reliance can be placed on him. His testimony is, therefore, valueless. Ghulam Sarwar (P.W.3) is neither a witness to deed of exchange nor a witness to passing of the consideration. Allah Diwaya (P.W.4) has taken two irreconcilable positions with regard to payment of consideration. Firstly he stated that no consideration was passed in his presence and secondly he stated the consideration was paid in his presence in Katchery at the time of registration of deed of exchange. Gammu (P.W.6) and Miran (P.W.7) are also not credible witnesses. Gammu is the son‑in‑law of respondents. He stated that the price of land was paid by the vendees to vendors one day prior to. the registration of deed of exchange. He admitted that neither he was present on the day of registration nor was witness. In similar view is the statement of Miran. He professed total ignorance with respect to transaction of exchange. He stated that a writing was effected with respect to receipt of sale price.

11. From the analysis of the aforesaid evidence, it is quite clear that the respondents had not proved the payment of price of suit land to Khan Muhammad D.W.1 Under the law it was the bounden duty of the plaintiff to prove by cogent evidence that the transaction as described in deed of exchange was a mask and was in substance a sale. There is hardly any necessity to state that exchange and sale are two separate and distinguishable modes of transfer of property. An exchange is mutual transfer of ownership. In such transaction, the transfer of property is consideration. While the sale is the transfer of property in consideration of price. (See sections 118 and 54 of Transfer of Property Act). Seen from this angle, I have no doubt in my mind that the testimony of PWs. 1, 3, 4, 5, 6 and 7 does not prove that the transaction embodied in exchange deed was not an exchange but a We. As against this evidence, the appellants produced Khan Muhammad D.W.1 and Muhammad Bakhsh, D.W.2. In addition to himself, Khan Muhammad stated that he had obtained the land situated in Revenue Estate Loonwala an exchange for suit land owned by him in lieu of exchange.' This witness was subjected to lengthy cross‑examination but nothing was. extracted to demolish his evidence. Muhammad Bakhsh, D.W.2, the tenant of land in revenue estate Loonwala deposed that he had been cultivating the land in Mauza Loonwala under Khan Muhammad and was paying rent to him. The evidence of D.W.1 and D.W.2 was corroborated by Khasra Girdawari Exh.D.2. The testimony of these witnesses which inspires confidence, was discarded by the two Courts below without any reasonable basis. In my view the two Courts below while rendering the finding on issue No.1 have overlooked the well‑known principles of appraisement of evidence and well‑settled principles relating to enforcement of pre‑emption highlighted in the preceding paragraphs of this judgment.

12. In the light of foregoing discussion, I am clear in my mind that the transaction embodied in deed of exchange is an exchange and not sale. As result of the above conclusion, this F,.A.0. succeeds. The finding of first Court and the finding of first appellate Court on issue No.1 is hereby set aside. The orders of remand passed by, the appellate Court dated 7‑12‑1983 and the judgment and decree passed by the learned Civil Judge, Liaquatpur dated 1‑12‑1981 ‑are hereby reversed. The suit ‑ filed by respondents is hereby dismissed. Since the case was not free from. difficulty, I leave the parties to bear their own costs. AA./R‑56/L ??????????????????????????????????????????????????????????????? Appeal accepted.