2004 PLP 432 (YLR)

(2) Whether Rs.2,00,000 is the actual sale price? OPP (3) Whether the plaintiff has superior right of pre-emption? OPP (4) Whether the requisite Talabs have been made in accordance with law? OPP (5) Whether the plaintiff is co-sharer in the suit property? OPP (6) Whether the plaintiff is entitled for decree as prayed for? OPP (7) Whether the property was exchanged in good faith? OPD (8) Whether the suit is liable to be dismissed? OPD (9) Relief,

5. After recording and appreciating the evidence of the parties, the trial Court vide its judgment and decree dated 5-8-2002 dismissed the suit. Feeling aggrieved the present petitioner preferred an appeal which came up for hearing before the Additional District Judge, Gujrat, who vide his judgment and decree dated 16-10-2002 dismissed the appeal and confirmed the finding of the trial Court.

6. The learned counsel for the petitioner contended that there is sufficient evidence on the record to establish that the transaction was a sale transaction. Failure of pre-emptor to prove passing of consideration in cash, in the case of sale disguised as an exchange or gift is not an absolute Rule. Reliance has been placed on the case of Mst. Miraj Bibi v. Mst. Azim Khatoon and others 1997 SCMR 1892. Further contended that the alleged exchange property by Ghulam Haider and Khadim Hussain vendees are not of equal value. One property is situated very close to the village, while the other is far away which is sufficient to infer that the transaction was not an exchange in reality.

7. On the other hand, learned counsel for the respondents has vehemently opposed the arguments of the learned counsel for the petitioner and supported the judgment and decree passed by both the Courts below. Further contended that there is a concurrent finding of fact against the petitioner which cannot be interfered with by this Court in exercise of its revisional jurisdiction.

8. I have heard the arguments of learned counsel for the parties and perused the record.

9. The question, that 'boils down', for determination in this case as to whether the property in dispute was sold and was not exchanged. From plane reading of the mutation in dispute Exh.P.5 it reveals that both the transferors i.e. Ghulam Haider and Khadim Hussain appeared before Revenue Officer and they accepted the exchange of property with each other. There is no mention of the passing of the consideration.

10. The exchange has been defined in section 118 of the Transfer of Property Act as under:-- "When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called `exchange'."

11. The essential character of a transaction of exchange is a mutual transfer of ownership of property by two persons. Where there is, a transfer of ownership by one of the parties only, and not by the other the transactions not an exchange, as there is no mutual transfer of ownership. In this respect reference can be made to the case of Tahir Hussain reported as PLD 1978 Karachi

182. Section 54 of the Transfer of Property Act envisages that a sale is a transfer of ownership in exchange for a price paid or promised or part paid or part promised and is complete on execution of the sale-deed. Essential elements of sale are (i) the parties, (ii) the subject-matter, (iii) F the transfer of or conveyance, and, (iv) price and consideration. ' And if any of the elements is missing it shall not be a transaction of sale.

12. Plaintiff/petitioner claims the transaction in dispute as a sale. The onus lies on him. Appearance of transaction is a 'device'. Not fictitious but a mode adopted to defeat the right of pre-emption and in the instant case that evidence on the record has proved that it was a transaction made between the two persons and they have adopted a valid device which is recognized by law in case of Ahmad Yar and another v. Muhammad Aslam 1981 CLC 527 and Ali Muhammad v. Malik Sanwal and others PLD 1961 (W.P.) Peshawar 62 wherein it has been held that where the vendees were anxious to take certain land and in order to avoid any pre-emption suit they resorted to the device of exchange. It was held that there was nothing illegal in this device which the law permits. Pre emption can be defeated by legitimate devices like exchange and gifts. All that is necessary is that the device must possess all the essentials `of exchange and gifts. If the law exempts exchange from pre-emption it is open to a person to resolve the exchange in order to save his land from pre-emption.

13. The allegation that the transaction is different from one described in the deed the circumstances indicate its different nature must be very strong character. For a transaction to be a 'sale it is necessary that price in cash must have been paid for the things sold. There must be ownership in a thing on one side and cash price for it on the other. In the instant case, the plaintiff has not been able to indicate/establish the circumstances proving the transaction as a sale. Had the possession of pieces of transaction of exchange has not been delivered to each other it would have been presumed that it was a fictitious transaction. There is no evidence in this regard produced by the petitioner. The plaintiff/petitioner has clearly asserted that Rs.2,00,000 (two lacs) were paid to Ghulam Haider by Khadim Hussain vendee but no eye-witness of the passing of transaction has been produced. In case of Khan Muhammad and 'another v. Mir Zaman PLD 1986 Peshawar 109 the Honourable Judge of the Peshawar High Court held that "right of pre-emption would arise only in respect of the sale of the land and property

Where, however, a transaction is ostensibly disguised other than as sale and the pre-emptor claimed the same as sale, the Court must strike issue' whether the transaction is a sale placing the onus on the pre-emptor to prove the issue. In the instant case the Issue No. l was framed whether the land was sold or was an exchange from the evidence available on the record produced by the petitioner which is not proved that the transaction was a 'disguised'; as a sale. There is concurrent finding of the Courts below that the mutation in dispute was an exchange and this Court in exercise or its revisional jurisdiction cannot interfere with the concurrent findings of fact. Reliance can be placed to the case of Gul'zar Khan v. Isa Khan 1993 SCMR 2099, Nazir Ahmad v. Boots 1989 SCMR 45'0, Riaz -v. Muhammad Saleem 1989 SCMR 1491 and Haji Muhammad Din'v. Malik Muhammad Abdullah PLD 1994 SC 291.

14. From minute scrutiny of entries in the Revenue Record, I find in the mutation of transaction of exchange in question Rappat Roznamcha No.121 in this regard has also been entered in Register Roznamcha Waqiati, the entry of which has been made in Column No. l of the mutation in dispute. The petitioner has not been able to establish that the transaction of exchange was a fictitious and in genuine. The oral statements of P.Ws. cannot contradict the entries of the mutation made by the Revenue functionaries. The transfer of possession in favour of Ghulam Haider on land measuring 2 Kanals, 13 Marlas through mutation on behalf of Khadim Hussain has been delivered which is reflected in column of possession in the record of rights pertaining to the year 1997-98.

15. From the above circumstances no option is left with the Court but to infer that the mutation in dispute was an exchange and not pre-emptible. Reliance in this context can be placed on the case of Syed Nazar Hussain Shah and another v. Shah Muhammad and 3 others 1998 SCMR 2755.

16. Learned counsel for the petitioner has not been able to point out any illegality, jurisdictional defect, non-reading and misreading of evidence, in the impugned judgments and decrees calling for interference by this Court, hence are unexceptionable.

17. For the foregoing -reasons this revision petition being devoid of force is dismissed. H.B.T./I-232/L Revision dismissed.