P L D 1984 Peshawar 166 (PLP)

The dispute in this case is with regard to 7/24 share of land out of Khasra No. 235 measuring 1 Kanal 16 Marlas situate in the area of village Akhroota in Tebsil Abbottabad. By an ostensible mutation of exchange No. 1757 attested on .28‑4‑1979 this piece of land was shown exchanged out of the said Khasra No. by Mst. Shah Jehan daughter of Abbas a co‑owner in the said Khasra number with land belonging to Aslam respondent out of Khasra No. 492 measuring 4 Kanals 18 Marlas to the extent of 1/9 Share regarding which mutation No. 1758 was attested on the same date. The petitioner Muhammad Zaman son of Sheikh Ahmed filed a suit for possession by pre‑emption of this land contending that the transaction in fact was one of sale for consideration of Rs. 233:

2. The concurrent finding of both the Courts below was that in fact al transaction of exchange and not a sale, therefore, not pre‑emptible. The judgments and decrees of the two Courts below have been assailed by Muhammad Zaman plaintiff/pre‑emptor in the present revision petition on the ground mentioned therein

3. Learned counsel for the parties heard and record perused.

4. Learned counsel for the petitioner contended that the Courts below have erred in coming to the conclusion that the transaction was one of exchange simply for the reason that there existed no direct evidence to prove the passing of sale consideration in cash and have failed to exercise jurisdiction vested in them by refusing to consider material before them which could lead them to belie a that the transaction was that of sale. He submitted that there were several circumstances established on the record to show that the, transaction was not one of exchange, namely ; (a) that there was a difference not only in the quality but also in the value of the properties said to have been exchanged ; (b) that it has not been proved that possession by the parties under the mentioned too transactions have changed as the transferee in the instant case has not parted with his own land given in exchange. (c) that no advantage derived from the so‑called exchange .has been explained and the advantage stated has not been borne out on the record; , (d) that Mst. Shah Jehan who in the case of exchange transaction should have been an ardent supporter of the defendant's version has taken no interest in the outcome of the suit and did not care to enter into the witness‑box; and . (e) that the defendant/transferee has also failed to appear himself as a witness but produced his special attorney obviously for fear of being offered an oath which he was unable to face.

5. After hearing the learned counsel for the petitioner at length I am of the view that none of these contentions can succeed in the instant case. The Patwari Circle when examined by the trial Court has deposed that the area transferred through both these exchange mutations Nos. 1757 and 1758 is the same treasuring 11 Marlas. He has also stated that the land transferred in both the cases is mostly of "Bari" kind. Similarly no inference of sale could be drawn from the mere fact that neither Mst. Shah Jehan ‑appeared as a witness for the respondent nor the respondent himself appeared in the witness box instead of his special attorney. Furthermore from the mere fact that possession of the properties remained with the respondent, no irresistible inference of sale could be drawn in the absence of proof of payment of sale consideration.

6. Under section 4 of the N.‑W. F. P. Pre‑emption Act, 1950, the right, of pre‑emption arises in respect of such land which may be subject‑matte of sale or of foreclosure of right to redeem such property. As provided in this very section nothing shall prevent a Court from holding that an alienation purporting to be other than a sale is in fact a sale. It is thus clear that in the given circumstances it is the duty of Court to determine what the real intention of the parties was opposed to their apparent intention. 7: It, therefore, follows that it is always open to pre‑emptor to show that a transaction in suit has the appearance of an exchange but is in fact one of sale. Similarly it is open to the Court to enquire into the true nature of the transaction and declare it to be that of sale if on the evidence adduced it is satisfied that the real intention of the parties to the transaction was to make a transfer by way of sale. It too is well‑settled that a transferee in order to safeguard his interest is equally entitled to adopt a device to non suit the plaintiff/pre‑emptor, as there is nothing illegal in effecting an exchange for the purpose of evading the right of pre‑emption.

8. The distinction between an alienation by way of sale and a transfer by way of exchange lies in the nature of the consideration for such transfer. Keeping in view the provision contained in sections 54 and 118 of the Transfer of Property Act, 1882 if the consideration is money of the property transferred it is a sale and if it is property not the price in cash then it is an exchange. It, therefore, follows that for a transaction to be a sale, the most important factor which is to be proved is that a price in cash must have passed between the parties to the transaction. There must be transfer of ownership on the one side and cash payment f9r it on the other.

9. In the instant case if the facts are considered the petitioner was himself unable to state if any money had in fact been paid to the transferor. He has frankly stated in his cross‑examination that he was unable to produce any evidence in support of his allegations. He further deposed that he was informed by the vendors that the impugned transaction was that of sale but had failed to cite them as his witnesses.

10. Furthermore a finding that the exchange was in fact a sale which was given the colour and appearance of exchange in order to defeat the sigh of pre‑emption is essentially a finding of fact. It transpires from the record that material evidence available on the record has been thoroughly and fully considered by both the Courts below and the learned counsel for the petitioner in the course of argument was unable to show that there had been any mis reading or misconstruing of the evidence.

11. In the circumstances I am of the view that the concurrent finding of the two Courts below on a question of fact holding that the impugned transaction was not a transaction of sale wearing mask of an exchange but genuine exchange not subject to the right of pre‑emption of the petitioner, needs no interference.

12. In the circumstances I see no merit in this petition which is accordingly dismissed. There shall however be no order as to costs. M. Z. M. Revision dismissed.