2004 PLP 1825 (CLC)

(3) Whether the plaintiff has performed Talbs in accordance with law? (4) Whether the suit-land is transferred' to defendant No. 1 through Hiba and not through sale? (5) Whether the suit-land is really purchased by the defendant No.2 at Rs.29,500 but in order to defeat right of pre-emption of the plaintiff, the same is shown as Hiba in favour of defendant No. 1? (6) Whether the plaintiff has got superior right of pre-emption? (7) What is the market value of the suit-land? (8) Whether the plaintiff is entitled to the decree as prayed for? (9) Relief.

3. In evidence, Anwar Khan, plaintiff appeared and he produced Hidayatullah, Sanaullah, Noor Zaman, postman, Said Ghulam Patwari Halqa and Naqibullah, Record Clerk in support of his case. As against this, Muhammad Rehmatullah, special attorney .for defendants appeared in Court and he examined Muhammad Iqbal, Petition Writer.

4. Mr. Nazir Khan, Civil Judge, Bannu, after hearing the arguments of learned counsel for the parties with reference to the material on record, arrived to the conclusion that the suit transaction was "Hiba" in nature and sale has not been proved satisfactorily. Under Issue No.3, it was pointed out that the plaintiff had prior knowledge of the suit transaction and the Talbs were not made according to law. Dealing with Issue No.7, an amount of Rs.3,802.34 was determined as market price of the suit-land. Resultantly, suit was dismissed with no order as to cost through judgment and decree dated 21-12-2002. Anwar Khan, feeling dissatisfied, preferred an appeal before learned District Judge, Bannu which was assigned to Additional District Judge-III, Bannu for disposal. The learned Appellate Court concurred with the trial Court and dismissed the appeal with cost vide judgment, dated 10-7-2003 which has given rise to the filing of present revision petition.

5. Mr. Gauhar Zaman Khan Kundi, Advocate for the petitioner contended, inter alia, that findings recorded and conclusions drawn as reflected in the impugned judgments of two Courts below are contrary to law, without jurisdiction and suffer from the defect of misreading and non-reading of the evidence on record and cannot be allowed to remain intact. He also maintained that petitioner side has successfully discharged the burden of proving "Talb-e-Muwathibat" and "Talb-e-Ishhad" at trial through cogent and convincing evidence which has been discarded on flimsy grounds; that burden of proof regarding Issue No.4 lay on the shoulders of defendants/beneficiaries of the alleged gift, which has not been successfully discharged by them and that market price of suit-land has been fixed arbitrarily which has resulted in manifest injustice.

6. Mr. Rustam Khan Kundi, Advocate for the respondents has supported the impugned judgments and decrees of the Courts below on the grounds appearing in the judgments itself and stated that the impugned judgments and decrees are unexceptionable and do not suffer from any legal and factual infirmity or deficiency.

7. The foremost question for consideration before this Court is whether the transaction is sale or Hiba. It needs no reiteration that in order to succeed in a suit, the pre-emptor is obliged under the law to satisfy the judicial conscience of the Court through cogent and convincing evidence that the transaction shown to be a gift was in fact of sale and device was adopted to thwart the pre-emption claim. From the evidence produced by the petitioner, nowhere it has been established that any consideration changed hands between respondent No.1 and respondent No.2. All the witnesses produced by the petitioner have given the evidence in the nature of hearsay and no one has witnessed any consideration changing hands. It is necessary that some price in cash must be paid for the thing sold. The word "sale" is defined in M. Malik v. Mst. Razia PLD 1988 Lah. 45 to the following terms:- "Sale means transfer of ownership in exchange for a price paid or promised or part paid and part promised where sale was made orally and reported to Patwari by parties thereto who had admitted payment of the consideration and delivery of possession on the basis whereof mutation was entered. Sale would be effected` and completed on that day and not when mutation in respect thereof, was sanctioned." In Muhammad Ali's case 1984 SCMR 94 word "sale" vitas defined in the following terms:-- "Sale is defined as being a transfer of ownership for sale price is an absolute transfer of rights, in property sold and no rights are left in transferor. Essential elements of sale are (i) the parties; (ii) subject-matter; (iii) transfer or conveyance and (iv) price or consideration. " According to section 54 of Transfer of Property Act it is to be proved on record that the price/consideration has been paid to the owner. In the present case consideration/price is not proved on record then sale is not completed in terms of section 54 of Transfer of Property Act. In the present case, petitioner has failed to prove element of consideration/price on record through reliable and cogent evidence.

8. Both the Courts below have given concurrent finding of fact against the petitioner. Conclusions of both the Courts below are in accordance with the evidence on record and learned counsel for the petitioner has not been able to point out any misreading or non-reading of the evidence resulting in manifest injustice. Both the Courts have given concurrent findings of fact against the petitioner after proper appraisal of evidence which hardly calls for interference by this Court in its revisional jurisdiction. This Court has very limited jurisdiction to reverse the findings arrived at by both the Courts below after proper appraisal of evidence until and unless the judgments of both the Courts below are the result of misreading and non-reading of the evidence on record.

9. In the result and for the foregoing reasons, I endorse the view of the Courts below that the transaction in question was in fact a transaction of "Hiba", immune from pre-emption, that the factum of sale has not been satisfactorily proved and that the "Talbs" have not been made F within the meanings of section 13 of the N.-W.F.P: Pre-emption Act, 1987. Finding no substance in this civil revision, I dismiss the same with no order as to costs. H.B.T./203/P Revision dismissed.