1979 PLP 285 (SCMR)

MUHAMMAD AKRAM, J.‑These are two petitions for review of our consolidated order dated 2nrd of November 1978, whereby we‑had dismissed the two Civil Petitions for Special Leave to Appeals Nos. 427 and 428 of 1978 filed by the petitioner against the respondents herein. Briefly stated the relevant facts are that the petitioner brought a suit for possession of the land in dispute by pre‑emption in this civil Court at Dera Ghazi .Khan alleging inter alia that the transaction in question was in fact a sale but that it had been given the colour of an exchange fictitiously by the defendants in order to defeat his right. The trial Court decreed his suit but the decree was reversed on appeal by the District Judge who dismissed the suit. The petitioner failed in his second appeal which was rejected in limine and petitions for special leave from the judgment were eventually rejected by us on the 2nd of November 1978. The main issue arising out of the pleadings of the parties which fell for determination by the Courts related as to the real nature of the transaction in dispute. In decreeing the suit of the plaintiff‑petitioner the learned trial Judge relied on the evidence of his two witnesses. Hayat Khan (P. W. 2) who had identified the parties‑at the time of the attestation of the mutation in dispute, deposed that in his presence a part of the consideration of Rs. 7,000 for the sale of the land was paid to the vendor. Mewa Khan (P. W. 3) deposed that he was present at the time of the striking of the bargain when it was agreed between the parties that the transaction of sale should be given the colour of an exchange in order to defeat the pre‑emptors. But on appeal the learned District Judge was not impressed by the testimony of these two witnesses. He observed that Hayat Khan (P. W. 2) was a stock witness who had been declared a tout before the creation of Pakistan and that the Deputy Commissioner had directed that his identification was not to be accepted by the Registrar. In so far as Mewa Khan (P. ‑W.) is concerned he was held to be a chance witness and his testimony did not inspire confidence. In conclusion the learned District Judge held that the plaintiff had failed to discharge the onus of this issue resting on him. The High Court in second appeal declined to interfere with these findings of facts recorded by the learned District Judge. In this Court also, after having briefly gone through the evidence, we saw no good reason to interfere as in our opinion there had been no misreading of the evidence by the lower appellate Court in recording its findings of fact. In these proceedings before us now the learned counsel has strongly relied on the observations made by this Court in Gulzar Khan v. Mst. Shahzad Bibi and another (P L D 1974 S C 204) to the effect that it is well settled that the question of the proper construction of a document is a question of law and not of fact. This proposition is unexceptionable and well settled. In the case under reference the husband had transferred the land by sale to his wife in consideration of Rs. 500 in lieu of her prompt dower and it was held that the transaction was in the nature of a hiba‑bil‑evaz, involving the element of gift and was not a sale pre‑emptible under the law. In the instant case however, we find that the transaction in suit, as embodied in the mutation for the land, was a pure and simple exchange and is not remotely susceptible of the interpretation that it was a sale. On the factual side the three Courts have concurred in holding that the evidence of the plaintiff's two witnesses did not inspire confidence. The plaintiff had failed to discharge the onus of the issue resting on him to prove that the real nature of the transaction was a sale which could be pre‑empted. For the foregoing reasons we see no force in these two review petitions which are dismissed. Petition dismissed.