1999 PLP 790 (YLR)

4. The learned trial Court had framed six issues in this case and these are reproduced below: (1) Is the transaction in question that of sale? (2) Has plaintiff superior right of pre -emption? O.P.P. (3) What is market value of suit land? O. P. P. (4) Is the plaintiff estopped from suit? (5) Is suit result of collusion, if so, to what extent? (6) Relief.

5. It appears from paragraph 7 of the judgment of the learned Senior Civil Judge, Mianwali dated 4‑11‑1976 that Issues Nos.2 to 4 were not pressed before him.

6. On the basis of its finding on issue No. l the suit was decreed in favour of the pre‑emptor. Against this judgment an appeal was preferred which came up before Mr. Muhammad Masood Akhtar Khan, Additional District Judge, Mianwali who disposed it of on 5‑4‑1981 while upholding the decision of the learned trial Court on issue No.

1. Thus, according to him the transaction was a sale and not an exchange.

7. Consequently, this revision petition has been filed to impugn the concurrent findings of the Courts below.

8. It appears from the admitting order that the question of market value of the suit property which was the subject‑matter of issue No.3 was also taken as one of the grounds for the revision petition. But it was pointed out by the learned counsel for the pre‑emptors/respondents that this ground cannot be taken at this stage by the petitioners who had previously conceded this issue and Issues Nos.2, 4 and 5 before the Courts below. The learned counsel for the petitioners, therefore, confined his arguments on Issue No.

1. It was his case that whereas the onus of this issue was on the pre‑emptors. They have not been able to successfully discharge it and that there was enough evidence produced by the petitioners to establish that this was not a sale transaction but an exchange. According to him whereas the witnesses of the pre‑emptors were either interested or had not seen the land in question but they were believed. That in comparison the verbal evidence produced by the petitioners was of a higher standard. That the land which was exchanged even if it was not of equal quality or value compared to its counter part was acceptable to the vendee. Because it was closer to his house and was. more protected. He went on to say that the. transaction in question ought to have been believed in accordance with the documents of its mutation as there was no "fraud alleged against the mutation in question. He argued that a vendee has a right of legal circumvention for defeating the right of a pre -emptor which was a piratical right. Thus, he concluded by saying that the judgments of the trial Courts were based on weak evidence.

9. In this connection the learned counsel for the respondents has made reference to paragraph 8 of the judgment of the learned Additional District Judge and said that the learned Additional District Judge has dealt with several objections raised by the defendants before the trial Court and that the matters stood decided and clinched. That appreciation of the evidence produced went in favour of the pre‑emptor and in this connection no material irregularity has been pointed out by the petitioners. Paragraph 8 of the judgment of the Additional District Judge, Mianwali dated 5‑7‑1981 is reproduced below in extenso:‑‑ "The contention of the respondents is that the very fact that the mutation of mortgage of land alleged to have been given in exchange to Muhammad Nawaz in favour of Khan Gul gives rise to the presumption that this is a sale, otherwise, what was the necessity of mortgaging the land to Khan Gul on the same day, if the defendants wanted to have this land. Exh.P.12 speaks amply that the possession of the land is still with the defendants. This also confirms the allegation of the plaintiff that the transaction in question is a sale. Moreover Muhammad Nawaz defendant No.4 who is stated to have exchange the disputed land with the defendants/ appellants has migrated from Mauza Chidru. If he was to migrate, then why did he exchange the land. The proper course for him was to dispose it of by way of sale. A person who migrates from a place tries to get rid of his property by selling it out and he does not exchange his property with the other property. This argument of the learned counsel for the respondents holds force and is allowed to prevail. .The other fact which goes against the defendants/ appellants is that Muhammad Nawaz gave 37 Kanals in exchange for the suit land. There is nothing on record, which may go to prove that the defendants land which was given to Muhammad Nawaz in exchange was superior in quality, than the suit land. If both the lands are of same quality, then what is the fun of taking less land by Muhammad Nawaz. It is also not the case of the defendants/ appellants that they had given some money to Muhammad Nawaz as a price for the additional land of 10 Kanals. This fact also shows that the transaction of sale was made and not exchange. Muhammad Nawaz is not established to be a man of poor intelligence or unsound mind, who agreed to take less land from the defendants and gave more land to them. It is on the record that Muhammad Nawaz has not been cultivating his own land for the last 40 years and he has been doing manual work some where in Saray Kirishna'. If he is not himself tilling his land, then why he would obtain some other land in exchange. He would try to dispose of his own land also."

10. I have heard the learned counsel from both sides. The Courts below have taken into consideration the evidence and the facts in a serious manner. Their findings are logical. There are concurrent findings of the two trial Courts. The main case of the petitioners is with respect to the non -appreciation of the evidence of the petitioner. But he was not able to suggest any material irregularity in such appreciation. Paragraph 8 of the judgment of the Additional District Judge covers some of the points raised today before this Court. I do not find any merit in this revision petition. It is dismissed. H.B.T./M‑1075/L