1999 PLP 1346 (SCMR)

MUHAMMAD BASHIR JEHANGIRI, J.

The petitioners were owner of a residential plot measuring 10 Marlas situated in village Sultanpura, Tehsil Shahpur, District Sargodha. They transferred this plot to one Bakhsha and got ostensibly in exchange of their residential plot, 3 Kanals and 5 Marlas of agricultural land by Mutation No.351 sanctioned on 28-8-1991 bearing Khata No.7, Khatuni No.31, Square No.35, Killa No.3/1/1 also situated in the village Sultanpura.

2. Attacking this transaction as a sale, Muhammad Hayat, respondent pre empted the transaction on payment of Rs.25,594 at which they valued its price. The right of pre-emption was claimed on the ground that the ostensible exchange was in reality a sale and as he was possessed of preferential right of pre-emption, he sought a decree for possession by pre-emption.

3. Another suit for pre-emption was also filed by one Sher Muhammad. Both the suits were consolidated.

4. In the light of the pleadings of the parties, both the suits were consolidated and trial proceeded in the trial Court on the following preliminary issues:-- , (i) Whether the transaction in dispute is sale? O.P. Pre-emptors. (ii) Preliminary relief.

5. The petitioners contested the suit, inter alia, denying the assertion that the disputed transaction was one of sale.

6. The learned Civil Judge 1st Class, Shahpur, who tried the lis, non-suited the pre-emptors-holding that on the evidence produced by them, he was unable to hold that they had discharged the onus to prove that the transfer of land by Bakhsha in favour of the petitioners was by way of a 'sale' and was pre emptible as such. On an appeal to the learned District Judge, Sargodha, the finding of the trial Judge on the preliminary issues on the nature of transaction was reversed and it was declared to be one of sale. The appeal was, thus, accepted. The impugned judgment and the decree of the trial Court was set aside and the case was remanded to the trial Court for decision afresh on the other points in issue strictly in accordance with law.

7. Feeling dissatisfied, the petitioners challenged the appellate judgment and the decree in Civil Revision No.751 of 1995, before the Lahore High Court. Before the learned Single Judge who was seized of the matter an application was moved by Muhammad Hayat respondent for the settlement of the dispute on special oath to be taken by Muhammad Aslam petitioner. Muhammad Aslam, petitioner No. 1, however, did not turn up but his brother Rehmat Khan stated that "both he and his brother Muhammad Aslant were not ready to take the desired oath on account of their traditions-". In consequence, this application was not pressed into service by the respondent-applicant and it was accordingly dismissed. Nonetheless the learned Single Judge reached the conclusion that "the very fact that the contesting defendants/petitioners were not at all willing to resolve their dispute on a special oath, leads to a genuine inference that they were perhaps not themselves sure with regard to the correct nature of the transaction and they were not truthful in their claim that it was a transaction of exchange". At this juncture, the observations of the learned District Judge were also noticed that the "defendant not only turned down this offer but they also frankly conceded before him that it was a sale, has to be taken into consideration and given due weight especially when it has not been specifically assailed or challenged".

8. The learned Single Judge in the High Court even otherwise came to the conclusion that "the transaction was that of a sale". According to the learned Single Judge "had it not been , so, the contesting defendants would have made a genuine effort to establish on record that there exists a plot in residential area which they owned and it was given to Bakhsha in exchange, particularly so when it was pleaded by the plaintiff/respondent in so many words, right in his plaint, that they did not own any such residential area nor was the possession of the said residential immovable property handed over to them".

9. Another contention raised before the learned Single Judge in the High Court on behalf of the petitioners was- that under the Punjab Pre-emption Act (IX of 1991), there was no provision to hold a transaction, which was ostensibly of an exchange, was in fact one of sale. This contention was repelled by the learned Single Judge in the High Court on the following reasoning:-- "I am afraid I do not find myself in agreement with him. While it is permitted to defeat the right of a prospective pre-emptor through lawful device, the Court cannot be said to be precluded from looking into the nature of the transaction. If it were true it should have been so pleaded before the learned Civil Judge. It was, however; not done by the contesting defendants and they allowed the Court to proceed with the trial and find out the correct nature of the transaction. This contention of the learned counsel for the petitioners does not carry weight and is accordingly rejected." In this view of the matter, the revision petition filed by the petitioners was also dismissed.

10. Leave to appeal is sought by the petitioners against the dismissal of the revision petition by the learned Single Judge in the High Court.

11. Syed Shamim Abbas Bokhari, learned Advocate Supreme Court, in support of this petition has reiterated before us the last-mentioned contention which he had raised before the Lahore High Court that there was no provision in the Punjab Pre-emption Act (IX of 1991), Punjab Ordinance V of 1990, Punjab Ordinance XVII of 1990, Punjab Ordinance XXVII -of 1990, Punjab Ordinance IX of 1991 and the Punjab Act IX of 1991 in contra-distinction to sections 4 and 15 of the Punjab Pre-emption Act (I of 1913) wherein such a provision has been specifically made. According to the learned counsel the intention of the Legislature was clear that no such power to be conferred on the Civil Court and, therefore, the learned District Judge as well as the learned Single Judge in the High Court had gravely erred to declare the transaction of exchange as sale.

12. We have; however, not been impressed by the contention of the learned counsel for the petitioners. Merely because there is no provision in the Punjab Pre-emption Act (IX of 1991) empowering the Civil Court to declare a transaction as a sale which is ostensibly one of exchange, it is not debarred to determine the true nature of a transaction. Again it does not appear from the record that this plea was at all raised by the petitioners either in the written statement or in the memorandum of appeal or in the memorandum of revision before the High Court. An objection to that effect has, however, been raised before the High Court orally. This objection has, however, been raised in ground No.1 of the petition for leave to appeal. This being so, the petitioners are not permitted to raise this plea at such a belated stage.

13. Considering all the circumstances, we are of the view that no fault could be found with the order made by the learned Single Judge in his revisional jurisdiction upholding the appellate judgment of the learned District Judge, wherein the impugned transaction of exchange was declared to be one of sale for all intents and purposes.

14. As a result, this petition is dismissed. H.B.T./M-323/S Petition dismissed