1970 PLP 775 (SCMR)

HAMOODUR RAHMAN, C. J.‑This is a, petition for, special, leave to appeal from the judgment of a learned Single. Judge of the High Court of West Pakistan, Peshawar Seat, dismissing, a second appeal. This appeal arose out of a suit for pre‑emption. The suit was filed by the present petitioners for pre‑empting a transaction of sale in respect of a plot of land situated in Khasra No. 3714/4 of village Seer Gharbi and a haveli situated in the abadi the said village. The pre‑emptor alleged that Allah Ditta, the' respondent No., 6 herein sold the above mentioned. Bahadur Khan, the predecessor‑in‑interest of respondents Nos. 1 to 5, for Rs. 1,700 but in order to defeat the pre‑emptive right of the petitioners disguised the transaction as an exchange. The suit was resisted by the vendee who alleged that the haveli and the agricultural land had not been transferred to him in the same transaction. The haveli had been sold independently to him some time in the year 1950 and the transfer of the agricultural land was really an exchange and not a sale as would be apparent from the exchange Mutation No. 1759. The pre‑emption suit regarding the haveli was, in any event, barred by limitation. The Courts below came to the conclusion that there was no evidence to support the allegation that the transfer of the haveli also took place along with the agricultural land. In fact the pre‑emptor was held to have miserably failed to prove that the haveli was not transferred, as asserted by the defendant, in 1950. The Courts below also came to the conclusion that the evidence of the Patwari had clearly established that the agricultural land was exchanged with some lands of the vendee and that the vendor had subsequently sold the land he had received in exchange from the vendee to one Muhammad Akbar by virtue of a Sale Mutation No. 1032 attested on the 20th June 1957. The exchange mutation was attested more than a year earlier on the 29th March 1956, but from this the learned counsel appearing in support of the appeal had sought to contend that since the land received in exchange was sold subsequently for Rs. 2,000 to Muhammad Akbar with whom the land was in fact mortgaged by Bahadur Khan, the alleged vendee t e transaction was really a sale. The High Court has taken the view that both the questions sought to be urged were questions of fact and therefore, it had no jurisdiction to interfere with them in second appeal. The petitioners now seek special leave to appeal to this Court and it is contended on their behalf that at least the question as to whether the transaction was a sale or exchange was a question of law, being the legal effect of certain proved facts and, therefore, the High Court was wrong in taking the view that it was a pure question of fact. At any rate it was a mixed question of fact and law. Even if this was a mixed question of fact and law, the Court below have in our opinion, rightly held that the transaction was an exchange and not a sale. The subsequent transfer by sale by Allah Ditta in favour of Muhammad Akbar took place a year and 3 months after the exchange transaction. It cannot, there fore, be said that the transaction entered into in March 1956, was a sale because, subsequently, the land was sold to the mortgagee of the land. On the other hand the very fact that the land was mortgaged and the mortgage would have had to be redeemed before Allah Ditta could get full title to the land was a sufficient justification for Allah Ditta to sell the land to Muhammad Akbar, the mortgage. This fact does not establish any kind of collusion between Muhammad Akbar‑ Allah Ditta and Bahadur Khan. The Privy Council decision in the case of Sabz Ali Khan v. Khair Muhammad Khan and others (A I R 1922 P C 139) relied upon by learned Counsel appearing in support of the petition is of no assistance to him, for, there the subsequent sale took place only 2 days after the exchange and it was for this reason that it was treated as a sale disguised as a transaction of exchange. The facts here are quite different. The petitioners had not at all succeeded in discharging the onus which was clearly upon them to prove that the transaction was in effect a said and not an: exchange. We see no reason, therefore, to interfere. This petition is, accordingly, dismissed. Leave refused.