P L D 1969 Peshawar 43 (PLP)

The first issue was found against the plaintiff' and it was held that the transaction in question was in fact an exchange and not a sale. It was held that the market value of the suit land came to Rs. 1,512/7/6. It was also held that the plaintiff had a superior right of pre‑emption but in view of the finding on Issue No. 1 the suit was dismissed.

4. An appeal was taken by the pre‑emptor to the Additional District Judge who held that the plaintiff had not been able to prove the payment of any sale price for the land in suit. Agreeing with the trial Court, the learned Additional District Judge dismissed the appeal with costs. The plaintiff‑pre‑emptor then filed the present appeal.

5. Mr. Pir Bux Khan, the learned counsel appearing for the respondents raised a preliminary objection to the competency of the present appeal. In order to appreciate the full import of the objection raised, it will be advantageous to reproduce here the relevant portion of section 31 of the Regulation :‑ "31.‑(1) A further appeal shall lie to the Court of the Judi cial Commissioner in any of the following cases from an appel late decree of a District Court on any ground which world be a good ground of appeal if the decree had been passed in an original suit, namely :‑ (a) .. (b) in a land suit, (i) If the value of the suit is two hundred and fifty rupees or upwards, or the decree Involves directly some claim to, or question respecting, property of like value, and the decree of the District Court varies or reverses otherwise than as to costs the decree of the Court below, or (ii) if the value of the suit is one thousand rupees or upwards, or the decree of the District Court involves directly some claim to, or question respecting property of like value. (2) The provisions of Order XLI of the Code of Civil Procedure, 1908, other than Rule 35 of the said Order, shall apply as far as may be to further appeals under this section and to the execution of decree passed on such appeals."

6. The objection raised by Mr. Pir Bakhsh Khan is that the value of the suit for jurisdiction in this case is rupees one hundred and thirty‑five only and a further appeal is not competent. Accord ing to the learned counsel the words "directly some claim to, or question respecting, property of like value" do not refer to the value of the property involved, but are restricted to case where a question of the payment of rupees one thousand or upwards was involved. He, in this connection referred to Sandal Khan v. Ghulam Khan and others (A I R 1944 Pesh. 20), Abdul Ghani v. Inayat Shah, (A I R 1945 Pesh. 7) and Mst. Ram Sarni and another v. Radha Kishan and others (A I R 1945 Pesh. 24). The first case deals with a suit for possession on the basis of the allegation that equity of redemption of the suit land had been sold to the predecessor‑in‑interest of the plaintiff. The price alleged to have been paid was Rs.

900. The suit was in dismissed by the trial Court on the ground that the alleged sale money had not been paid. The District Judge revised the finding and held that the price had been paid and passed a decree in favour of the plaintiff. On a further appeal having been filed, it was held that no further appeal lay. Some observations of the Bench made in this case would indicate that according to them, there was difference in a case of mere possession of land whatever its value for jurisdiction and a suit for pre‑emption where a part from the land in suit a sum of money was determined as market value of the land. The precedent case is, therefore, distinguishable from the case before me. The two other cases referred to by the learned counsel are in pre‑emption cases. It was held in them that further appeal was not competent where the only question raised was the right of the pre‑emptor to pre‑empt the property in dispute. These judgments would, therefore, appear to lay down that the market value of the property in a pre‑emption suit may be up to or beyond the limit prescribed in clause II (b) of section 31 of the Regulation, but if there is no contest about the correctness of this value, no further appeal would lie. I have my own doubts about the correctness of this view, but I do not want to deal exhaustively with it as the case before me is clearly dis tinguishably from the facts of the cases under reference. Suffice it to say that such an interpretation would unnecessarily restrict the scope of a further appeal. In all pre‑emption suits, the market value has to be determined by the trial Court. If the value determined is rupees one thousand or upwards, the Court in determining a second appeal has to deal with a question 4 respecting the property of that value even if the only question raised before it is that of the right of the pre‑emptor to pre‑empt the property. In deciding the two cases under reference, the Court of the Judicial Commissioner, Peshawar, relied on Ghulam Ghaus v. Nabi Bakhsh and others (24 P R 1903). In that case, objection was raised to the competency of four appeals, one of which related to mortgage money, and the other three were pre‑emption cases. The objection was raised on the basis of section 40 of the Punjab Court Act, whose language was similar to the provisions of law with which we are dealing. The Chief Court held that further appeals lay in all those cases, but nowhere has it been said that further appeal would lie only when question of the payment of money up to or beyond the prescribed limit was involved. On the other hand, it was observed :‑ "The words `claim to, or question' respecting' seem to me very comprehensive and not to be lightly construed against the right of appeal. It is the decree under appeal, and not the amount by which the appellant wishes the pre‑emption price to be increased, or reduced, or whether the appellant is vendee or pre‑emptor, which has to be considered."

7. The main question raised in the present appeal is as to whether the alleged transaction was a sale or an exchange. If it is found to be a sale, a decree shall have to be passed in favour of the appellant conditional on payment of Rs. 1,512/7/6. The courts below have found that the plaintiff appellant has a superior right of pre‑emption and it is no longer in dispute. His claim in appeal, in essence, is to pre‑empt the property in dispute on payment of the market value which has been assessed by the trial B Court to be above Rs. 1,

500. In Gul Muhammad Khan v. Khan Ahmad Shah (29 P R 1893) the defendants' contention in a pre‑emption suit was that the transaction in question was an exchange and not a sale. The value determined on the basis of thirty times the land revenue was less than rupees one thousand. An objection was raised that no appeal lay in view of the first limit of section 40 of the Punjab Courts Act. The Court overruled this objection. In that case, the Court had assessed the market value of the property at Rs. 2,822 and the plaintiff had claimed it at Rs. 2,

500. The deed of sale showed the transfer price as Rs. 4,500 plus one ghumaon of land. It was held that the decree involved directly some claim to or question respecting property of the value of rupees one thousand or upwards namely the price to be paid for the land in suit by the plaintiff in his character of a pre‑emptor. The objection of the learned counsel is therefore overruled, and I hold that the present appeal is competent.

8. Now I will deal with the merits of the case. Both the courts below have found that the transaction in question was an exchange and not a sale. The plaintiff produced three witnesses in order to prove that the transaction in question was in fact a sale. It was stated by Bilore Khan and Alim Jan P. Ws. that respondent No. 2 had offered to sell the property in dispute to them but they refused. Bilore Khan stated that respondent No. 2 wanted to sell the property in dispute to him to meet the expenses of the marriage of his son, but he admitted in cross‑examination that the respondent had talked to him on the subject of the sale of the land after the marriage of his son. If respondent No. 2 wanted some money for the marriage of his son, he would have certainly approached this witness before the performance of the marriage and not after that. Both the above witnesses stated that they were alone when offer of sale was made to them. Neither Bilore Khan, nor Alim Jan were present when the alleged bargain of sale was effected between respondent No. 1 and respondent No.

2. P. W. Ali Nawaz stated that he was a broker and the land in suit was sold by respondent No. 2 through him to respondent No. 1 for Rs. 1,

200. This witness admitted that no receipt for Rs. 1,200 was executed at the time of bargain. He stated that he came to know that a pronote for the sale price had been executed. He denied that he was related to the plaintiff, but he was belied in this respect by Bilore Khan. He is son of Akram Khan and Bilore Khan admitted in his cross‑examination that Akram Khan was related to the plaintiff: The courts below did not find the statement of this witness worthy of credence and in my opinion they have rightly disbelieved him.

9. The learned counsel for the appellant pointed out the following circumstances in order to persuade me to hold that the transaction was in fact a sale and not an exchange :‑ (a) that the land in suit was 11 Kanals, 1 Marla whereas the land which respondent No. 2 got in exchange from respon dent No. 1 was only 4 Kanals, 18 Marlal ; (b) that the value of the land according to Patwari was Rs. 1,512/7/6 and that of the land which he got in exchange is only Rs. 722/12 ; (c) that the Khasra Girdawaris show that notwithstanding the exchange, respondent No. 2 was not in possession of the land which fell to his share in kharif Rabi of 1938, and the same was being cultivated by Gul Muhammad a tenant of respondent No. 1.

10. The courts below have dealt with all these points in a satisfactory manner. It has been found that the land, which the respondent got in lieu of the land is 'Do Fasli' whereas the suit land is `Yak Fash'. The difference in area is, therefore, easily explainable. With regard to the difference in price, it was found that the price had been calculated on the basis of five years' average which is not a very satisfactory method of assessing the market value of the land.

11. As to the third contention raised, it was pointed out that the suit land was admittedly in possession of respondent No. 1, through his tenant. Respondent No. 2 appeared and stated that he had taken possession of the land which he got in exchange for the suit land, and that Gul Muhammad, who was shown as a tenant of that land was none else, but his own grandson. The entries in the Khasra Girdawaris have, therefore, been effectively rebutted. It was held in Faqir Shah and others v. Khalo Khan and others (P L D 1951 Pesh. 14) that the plaintiff must prove some circumstances on the record from which it can be reasonably inferred that the nature of the transaction was the same as alleged by him. It was held in Shaukat Khan and others v. Kh. Muhammad Khan and another (P L D 1959 Pesh. 178) that the Court will have to declare a transaction as a sale, if on the evidence adduced it is satisfied that the material brought on the record indicates most unequivocally that the intention of the parties to the transaction was to make a permanent transfer by way of sale. The evidence in this case does not point out that the exchange effected between the parties was in fact a sale.

12. The matter is concluded by a concurrent finding of fact, and I see no reason to disagree with that. The appeal is, therefore, dismissed with costs. S. A. H. Appeal dismissed.