P L D 1950 Baghdad-ul﷓Jadid 21 (PLP)

A.I. R 193 5 Pesh. 191 referred to. JUDGMENT

The dispute between the parties related to 15/20th shares of Khata No. 48 situated in the village Makhdoom pur. Maulvi Hisam‑ud Din appellant took 13/120 shares by sale for Rs. 448 and the remaining 2.120 shares by exchange. The mutation of exchange No. 241 was entered on 28th of February 1943 and was sanctioned on 24th of March 1943. See Exhibit B‑B. The mutation of sale was entered on l0t.h of March 1943, and was sanctioned on the same date, i.e., 24th of March 1943. See mutation No. 246 Exhibit D‑C. Imam Bakhsh respondent brought a suit on 19th of February 1944 for the possession of the said land by way of pre‑emption on payment of Rs. 225 alleging that he had a preferential right of pre‑emption and the sale had taken place for Rs. 225 and the same was the market value of the land. The vendee had pleaded that the part of the land was exchange had taken place before the institution of tae suit by the pre‑emptor and the vendee had thus proved his rights and the plaintiffs suit was not entertainable. He also pleaded that the sale of the rest of the land had taken place for the sum of Rs. 448 and the same was the market value of the hand. The trial Court held that the entire land was sold and no part of it was exchanged consequently the plaintiff had the preferential right of pre‑emption and that the sale for Rs. 448 was not proved and the market value of the land was Rs. 220 and consequently the claim of the plaintiff was decreed on payment of Rs, 220. " Maulvi Hisam‑ud‑Din has preferred this appeal before this Court. A very inordinate time was taken in this Court to determine the question of the market value and the report which has eventually come has fixed the market value of the land at Rs. 30 per bigha which according to the calculation would amount to Rs. 275‑10‑

0. The question of market value has practically lost its charm and this will be accepted as correct if the appellant does not succeed on the other point with which we are dealing presently and that is the question of exchange of a part of the land in dispute. If the exchange is established then certainly the plaintiff has no preferential right of pre‑emption and his suit merits dismissal. It has already been pointed out above that the mutation No. 241 for the exchange of the part of the land was entered on 28th of February 1943 .in favour of Maulvi Hisamud‑Din. The land was given to Jamal by M. Hisamud‑Din is situated in village Makhanbela, and is ‑2/3Cth share of khata No.

19. The mutation was sanctioned. See No. 218 Exhibit D‑D. Now there is no denial of the fact‑ that ,there axe two mutations of mutual exchange of the property between Jamal and Maulvi Hisamud Din. The fact that there was an exchange of property mentioned in those two mutations carries‑the presumption of truth. It remains for‑ the plaintiff to prove that ‑this was not so. His. contention is based on the following points.‑ Firstly that Jamaf was not given the possession of the land which was given to him in exchange by Maulvi Hisamud‑Din. Mr. Mustafa ‑Khan's reply was that the physical possession of the exchange property, is not a condition precedent for the purposes of validating the exchange. This position is not denied by the respon dent and‑it could not. Be in addition to that, Mr. Mustafa Khad contended that as the land vas given in exchange to Jamal was a share in a joint khata, consequently it was not possible for Jamal to take its tangible physical possession forthwith It was; therefore agreed between the parties that‑Jamal would take two maunds of wheat from Hisamud‑Din for the land which was given to. him in exchange, , Imam Bakhsh respondent contended that there is no proof on the file that the said grain was ever given to Jamal. In the first place Jamal had admitted that he had received it. Secondly even if he had not received that grain the exchange could not be invalidated thereby. Jamal could 'recover his share by a suit against Hisamud Din. The validity of the exchange thereby remain, absolutely unaffected This contention of the plaintiff respondent‑therefore does‑not appear to us of any force: Secondly the question raised by the plaintiff respondent Was that Jamal had received the full police of the entire land In support of this con tention he depended on the statements of Mohammad, son of Noor Mohammad and Mohammad Bakhsh, son of Wahid Bakhsh. We are unable to place ‑any credence in the testimony of these two witnesses.' Mohammad Bakhsh son of ‑‑Wahid Bakhsh's evidence was to ‑the effect‑that the talk between Jamal and Hisamud‑Din referred to an exchange of one‑half of the property‑in dispute. This is certainly: Wrong. If this is wrong then the rest of the statement of Mohammad Bakhsh which referred to the payment of Rs. 225 in his presence is absolutely untrue. If we are unable to accept the testimony of Mohammad Bakhsh, son of Wahid Bakhsh we can attach no importance to the statement of. a chance witness like Mohammad, son of Noor Mohammad. The plaintiff therefore could not prove that the consideration was ‑paid by the defendant appellant for the entire land These facts therefore to us' appear absolutely insufficient to rebut'' the presumption which arises in favour of the vendee. Imam Rakhsh had drawn our attention to a ruling Bhaid khan v. Fazullah Khan A I R 1935 Peshawar

191. We have‑ gone into that ruling and in our view, it does not support the plaintiff pre‑emptor but goes against him. The very head‑note which, we ale reproducing here lays down a proposition which supports the action of the vendee however abominable it may be. "The head‑note reads:‑‑ . "An exchange would be treated as an exchange except where it is, shown by the pre‑emptor that there are circumstances pointing to its‑being in fact a sale. The Courts have got the: jurisdiction to go into those circumstances and to treat it as a sale if there be evidence forthcoming to justify the confusion that the land has been purchased for money. But as long as there is nothing to show that a consideration in cash has passed for the land, which is the sine qua note for making a transaction sale, an exchange of plots of land would be deemed an exchange and would rot be liable to pre‑emption". This ruling clearly shows that the vendees could defeat the right of pre‑emption by any legitimate means. Provided that those means carried the sanctity of law. We have no alternative but to disagree with the findings of the Courts below on this point and we hold that the part of the land was exchanged and the exchange had taken place in favour of Hisam‑ud‑Din before the suit of pre emption was brought by Imam Bakhsh. Hisam‑ud‑Din could adopt this tactic to defeat the right of pre‑emption of the plaintiff' and this he bad succeeded to do. The plaintiff therefore at the time of the institution of the suit had no preferential right to pre‑empt the transaction in dispute. We therefore accept the appeal, set aside the decree of the Court below and dismiss the suit with costs throughout. K. M. A. Appeal accepted.