P L D 1962 (W (PLP)

2. The facts briefly are that on the 4th of October 1956 one Hidayatullah transferred, by a transaction purporting to be a gift, 6 kanals, 19 marlas of land, forming part of Khasra No. 2009, situated in village Akora, to Haji Sayyed Muhammad Karam Shah by a deed, copy of which is Exh. D. W. 2/1, registered on the above date. Later, on the 5th of March 1958, one Tila Muhammad, son of Rafiullah, sold by a registered deed 8 kanals, 8 marlas of land, also comprised in the same Khasra number, in favour of Haji Sayyed Muhammad Karam Shah for an osten sible consideration of Rs. 927 by deed registered on the above date. Nur Ilahi Khan, plaintiff in Suit No. 44/1, sued for pre emption of the second transaction on the grounds that he is an owner of land contiguous to the land in suit and also a participator in the immunities attached thereto. He contended that the amount mentioned as consideration in the sale-deed was inflated for the purpose of defeating the pre-emptive rights of the plaintiff.

3. Nur Ilahi Khan also filed another Suit No. 261/1 of 1957, challenging the alleged gift in favour of Haji Sayyed Muhammad Karam Shah, on which the latter based his claim to an equal right of pre-emption with the plaintiff in the other suit, on the ground that the transaction, although given the colour of a gift, was in reality one of sale. Pre-emption of the transaction was, therefore, claimed.

4. The trial Court dismissed Suit No. 261/1 of 1957, holding that the transaction was a genuine gift, and Suit No. 44/ 1 was also consequently dismissed on the ground that Haji Sayyed Muhammad Karam Shah had an equal right of pre-emption with Nur Ilahi Khan.

5. Against the above orders of the trial Court, dated the 8th of February 1960, Nur Ilahi Khan filed appeals which were heard by the learned Additional District Judge, Peshawar. The appeal against the decision in the pre-emption Suit is No. 212 and that in the suit relating to the gift No. 211 of 1960.

6. The learned Additional District Judge accepted both appeals. Suit No. 261/1 was decreed in favour of the plaintiff with costs against defendant No. 1 in both Courts on payment of Rs. 400 to him. In the other suit a decree for pre-emption was granted on payment of Rs. 927.

7. Against the above orders of the learned Additional District Judge, dated the 14th of May 1960, Haji Sayyed Muhammad Karam Shah has filed the present appeals.

8. As the fate of Appeal No. 212 depends on the decision in Appeal No. 211, it will be convenient to deal first with the latter. Before proceeding further, however, it may be stated that both appeals were filed under section 31 of Regulation No. 1 of 1931 (hereinafter referred to as the Regulation), being styled Further Civil Appeals. By the Schedule to the West Pakistan Ordinance 11 of 1962 (hereinafter referred to as the Ordinance) Regulation No. 1 of 1931 was repealed, but Mr. Pir Bakhsh for the appellant contended that in spite of the promulgation of the above Ordi nance the appeals should continue as further civil appeals instead of as regular second appeals under section 100, C. P. C. The difference between section 31 of the Regulation and section 100, C. P. C., is that whereas, under the latter provision of law, find ings of fact of the Courts blow are ordinarily binding on this Court in second appeal, under section 31 of the Regulation the appellant is entitled to put forward any ground which would be a good ground of appeal if the decree lad been passed in an original suit. In other words, a further civil appeal filed under section 31 of the Regulation is in effect a further first appeal.

9. In support of his contention that the appeals must still be treated as further civil appeals. Mr. Pir Bakhsh relied on clause 28 (5) of the Ordinance, which runs:- "Notwithstanding the repeal of the enactments mentioned in the Schedule, everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceeding com menced, officer appointed or person authorised, jurisdiction or power conferred, rule made and order issued under any of the provisions of the said enactments shall, if not inconsistent with the provisions of this Ordinance, continue in force and, so far as may be, be deemed to have been respectively done, taken, incurred, commenced, appointed, authorised, conferred, made or issued under this Ordinance." Mr. Pir Bakhsh is undoubtedly right in arguing that unless section 31 of the Regulation is inconsistent with the provisions of the Ordinance, further civil appeals are saved by the clause of the Ordinance above cited, and the question for decision is whether there is any inconsistency.

10. In the Preamble to the Ordinance its object is thus stat ed : "whereas it is expedient to amend and consolidate the law relating to Civil Courts in the Province of West Pakistan". It thus appears to me clear that the object of the Ordinance is to secure a uniform system of Courts and procedure throughout the A Province and to do away with the anomalies which previously existed. It is no doubt true that the Preamble refers explicitly only to Courts, but it is to be noted that the Regulation in dispute concerned not only Courts but also the procedure relating to the filing of appeals and revisions. If, therefore, it had been the intention of the Legislature that only the hierarchy of the Courts was to be affected, there was no need to repeal the whole of the Regulation. It would have been sufficient to do away only with those sections relating to Courts, while leaving the others, relating to procedure, intact. Moreover, I have always been of the opinion that when one Province of West Pakistan was created it was highly unjust that whereas litigants in other regions of the Province should be limited to a second appeal under section 100, C. P. C., litigants 1n the former North-West Frontier Province should have the privilege, denied to the others, of re-opening the whole case. In my opinion, therefore, the provisions of section 31 of the Regu lation are inconsistent with the purpose of the Ordinance. These appeals must accordingly be treated as regular second appeals under section 100 of the Code of Civil Procedure.

11. This being settled, the next question for determination is whether the finding of the learned Additional District Judge that the transaction in dispute in this appeal, although given the guise of a gift, was in reality a sale, can be interfered with. It is to be noted that there is no question of interpreting the deed forming the basis of the transaction. It clearly purports to be a gift, and is described as a tamliknoma. The question of the nature of the transaction is thus purely one of fact. Mr. Pir Bakhsh contended that even if this be so, the finding is vitiated as being based on no evidence, but I am unable to accept this argument. It is true that no direct evidence has been led by the plaintiff to show that consideration passed, the transaction being consequently a sale, but in the nature of things such evidence could not be forthcoming, and the learned Additional District Judge was justified in consi dering the surrounding circumstances, such as the poor financial status of the alleged donor, that he was a drug addict (being consequently in need of money to satisfy his craving), and that by the transaction in dispute he parted with the last remaining portion of his land, thus leaving no means of livelihood for him self and his family. It is not always easy to draw the line between mere conjecture and a reasoned consideration of the surrounding circumstances, but in the present case the finding of the learned Additional District Judge appears to me to fall clearly within the second category. Even if his decision be erroneous, therefore it cannot be held to be based on no evidence, and I see no reason to interfere. Appeal No. 211 is accordingly dismissed with costs.

12. The effect of the above finding on the other Appeal No. 212 of 1960, is that the appellant loses the land, the acquisi tion of which enabled him to claim equal status with the plaintiff in respect of pre-emption of the sale. In consequence the plaintiff is clearly entitled to a decree for pre-emption of the transaction of the 5th of March 1958.

13. In the result this appeal also fails, and is dismissed with costs. K. M.A. Appeal dismissed.