1988 PLP 814 (MLD)

Mst. Taram Jana, respondent No.2 herein, was owner of land measuring 7 Kanals 4 Marlas out of total in Khasra Nos. 4980, 4975 and 4979. She sold the entire area, owned. by her, to Haq Nawaz Khan, respondent No. 1 herein, for Rs.844, but in order to defeat the pre‑emptive right of Zar Wali Shah, petitioner herein, who had instituted a suit for the said purpose in the Court of Senior Civil Judge, Bannu, she first entered into a transaction of exchange of 3 marlas out of the said entire area vide mutation No.14929 and in exchange got an equal area from Haq Nawaz through mutation No. 14930, whereas the entire area was sold and no area was exchanged. Even otherwise the said exchange was against Martial Law Regulation No.115 and void. Subsequently Mst. Taram Jana sold the remaining area to Haq Nawaz Khan by mutation No. 14931. All the 3 mutations were attested on the same day i.e. 12‑7‑1973. Zar Wali Shah plaintiff‑petitioner claiming superior right of pre‑emption on the basis of co‑ownership in contiguity with, and participation in the immunities and appendages of the said land brought a suit for declaration that the exchange transactions were illegal and void and for possession by pre‑emption of the entire area measuring 7 Kanals 4 Marlas on payment of Rs.844 or the price fixed by Court. It was also mentioned in the suit that on the same day Mst. Taram Jana transferred the 3 Marlas, she had got in ex‑chan7e from Haq Nawaz, to the son of the latter vide Mutation No.14932 and thus the exchange transactions were merely a sham transaction. Mst. Taram Jana, defendant No.2 in the suit, was placed ex parte and Haq Nawaz Khan, defendant No.1 in the suit, contested the same. On the pleadings of the parties, the following issues were framed by the learned Senior Civil Judge, Bannu:‑‑ (1) Whether the suit is competent in the present form? (2) Whether the plaintiff has waived his right of pre‑emption? (3) Whether the plaintiff has got superior right of pre‑emption? (4) Whether Mutation No. 14929 is in fact that of the sale and not an exchange, hence pre‑emptible? (5) Whether the price of the suit land excluding the land alleged to be exchanged, is Rs.4,500 fixed in good faith and paid? (6) What is the market value of suit land? (7) Relief? Additional Issue (8) Whether Mutation No. 14929 attested on 12‑7‑1973 is void, ficticious, fraudulent and is against Martial Law Regulation? O.P.P. After recording the evidence of the parties the learned Senior Civil Judge decided issues Nos. 1, 3, 4 and 8 in favour of the plaintiff, issues Nos. 2 and 6 against the defendant and on issue No. 5 he determined the price of the suit land as Rs.4,500 and vide judgment dated 10‑10‑1974 granted a decree in favour of the plaintiff for possession of the suit land on payment of Rs.4,

500. Haq Nawaz, respondent No. 1, herein, filed an appeal before the District Judge, Bannu. The latter set aside the finding of the learned Trial Judge on issues Nos. 1, 3, 4 and 8 and decided them against the plaintiff and by accepting the appeal, vide his judgment dated 26‑2‑1975, dismissed the suit of the plaintiff/petitioner. The appellant feeling aggrieved has filed the present revision petition. The learned counsel for the petitioner challenged the findings of the learned appellate Court on 3 grounds: firstly, the transaction of exchange was hit by paragraph 24 of Land Reforms Regulation, 1972 (M.L.R. 115); secondly, the whole property of Mst. Taram Jan a came back to the family of the vendee; and thirdly, all the transactions were effected on one day which shows that the t, transaction of exchange was sham transaction. So far as the first ground is concerned, no doubt under sub‑paragraph (4) of paragraph 24 of the Land Reforms Regulation, 1972, no person owning an area equal to or less than a subsistence holding could alienate. by sale, mortgage, gift or otherwise any part of his holding but according to the proviso to this sub paragraph' he could alienate the entire holding. This proviso was, however, amended 1976, whereby exchanges of any part of a subsistence holding were allowed. However, the impugned exchange transaction took place in 1973. Obviously at that time both the respondents herein could not enter into transaction of exchange regarding a portion of the land owned by Mst. Taram Jana and that exchange was hit by paragraph 24 of the Land ::forms Regulation, but Mst. Taram Jana, on the game day, when she got the area of 3 Marlas in exchange, from Haq Nawaz, retransferred the same to the latter. Any how Mst. Taram Jana had alica3tcd, lay way of exchange and sale the entire 'Area owned by her. She could, even in 1973, alienate her entire holding. Under the Original proviso to sub‑paragraph (4) of paragraph 24 of the Regulation there was no restriction to alienate her entire holding. As she had alienated her entire holding, some by exchange and some by sale, it cannot be said that she violated the provisions of paragraph 24 of the Regulation even in their original form. So far as the area of 3 Marlas, which she obtained in exchange from Haq Nawaz is concerned, it may be stated that area was also retransferred by her on the same day to the son of Haq Nawaz. This would show that his area also went back from her and as such that transfer was also not hit by the provisions of paragraph

24. It was urged by the learned counsel for the respondent that Civil Court could not grant the declaration as prayed for by the petitioner and in this respect he relied upon Abdul Majid Khan v. Shehzada Asaf Jah P L D 1970 Pesh.

37. Fazal Rahim v. Fateh Muhammad and 4 others P L D 1980 Pesh. 1(5), Muhammad Bashir v., Ghulam Akbar 1982 S C M R 1018 and Gul Badshah v. Sher Baz Khan 1983 C L C 1227. However, this contention cannot prevail for the reason that Mst. Taram Jana had alienated her entire area on one date, no doubt some by ,exchange and some by sale, it cannot, therefore, be said that she had violated the provisions of paragraph 24 of the Regulation, as already held above. In so far as second contention is concerned it may be stated that the whole property of Mst. Taram Jana going back to the family of Haq Nawaz does not mean that no transaction of exchange had talon place. There are two mutations of exchange establishing the factum of exchange and the same cannot be ignored. It was further urged by the learned counsel for the petitioner that all the transactions in this case were held on one day meaning thereby that actually Mst. Taram Jana wanted to sell her entire holding. and the transaction of exchange was a sham transaction effected in order to defeat the pre‑emptive right of the petitioner herein. However, the petitioner failed to produce any evidence to show that sale consideration passed hands in respect of the 3 Marlas given in exchange by Mst. Taram Jana to Haq Nawaz. The essential ingredient of sale is the fixation of price and payment thereof by the vendee to the vendor. The petitioner failed to establish this circumstance. It cannot, therefore, be held that the exchanged area was also a sale merely on the ground that this transaction was effected on the same day when the sale was made. For the aforesaid reasons the impugned judgment of the learned District Judge, Bannu is rot exceptionable and finding no force in this revision petition, I would dismiss it with no order as to costs. M.Y.H./177/P Petition dismissed.