2012 PLP 853 (CLC)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of judgment and decree dated 25-3-2008 passed by the learned Civil Judge, Gujar Khan, whereby a suit for possession through pre-emption filed by him was dismissed and the judgment and decree dated 2-10-2010 passed by the learned Additional District Judge, Gujar Khan, whereby the appeal preferred by him also met the same fate.

2. The plaintiff/petitioner filed a suit for possession through pre-emption in respect of land fully described in head-note of the plaint. It was contended that defendant/respondent purchased the disputed land for a sum of Rs.30,000 but in order to defeat the petitioner's right of pre-emption, wrongly showed the transaction as exchange by giving incorrect valuation of the land at Rs.50,

000. He contended that no notice was given to him by the vendor or the vendee before the sale and he attained the knowledge about it on 19-10-1999 at 5-00 p.m. at his residence from one Amjad Mahmood Kiani in presence of Muhammad Latif and Muhammad Akhlaq. He further contended that he then and there announced that he would enforce his right of pre-emption and thereafter, sent a notice making Talb-i-Ishhad through registered post on 18-10-1999 and then filed the suit containing Talb -i-Khusumat. According to him, he is co-sharer in the joint Khata and owner of the adjacent land and that the disputed land and land owned by him have common passage and source of irrigation. With these averments a decree for possession through pre-emption on payment of Rs.30,000/- or the price fixed by the Court was prayed for.

3. The defendant/respondent contested the suit. It was contended that the disputed land measuring 60 kanals, 2 marlas was exchanged for the land measuring 61 kanals, 4 marlas and no sale had taken place. It is urged that the petitioner had not made Talbs in accordance with law.

4. After framing of the issues and recording the evidence, the learned trial court dismissed the suit by holding that the disputed transaction was exchange and that the Talb were not made. The learned ADS reversed the findings of the learned trial court regarding making of Talbs, however upheld the same to the effect that the impugned transaction was in fact exchange so the suit for possession through pre-emption was not maintainable.

5. I have heard the learned counsel for the petitioner at length and perused the record.

6. None of the P.Ws. was present at the time of alleged bargain between Ijaz Ali etc. previous owners and respondent/defendant. Their evidence is based on hearsay. No tangible proof was produced to establish that in fact any consideration was paid by defendant/respondent No.2. The mutations Exh.P4 and Exh.P5 clearly reveal that defendant/respondent transferred the land measuring 61 kanals, 4 marlas for the disputed land. Both these lands are situated in the same village. The learned counsel for the petitioner has contended that D.W.-1 had admitted that the land given by him is at a longer distance from the village Abadi so there was no reason for Ijaz Ahmad etc. to exchange the disputed land with the said land. Every one has his own preferences and keeps in mind his personal convenience. The mere fact that the disputed land is nearer to village Abadi then the land given by the respondent does not prove that no exchange had taken place. The land was given for the land and there is nothing on the record to prove that any money had passed from the defendant/respondent to Ijaz Ali etc. The intention of the parties is to be gathered from the contents of the documents and the ostensible transaction should not be disbelieved unless it is established positively that the same was in fact sale within the meanings of section 2(d) of the Pre-emption Act, 1991 and was wrongly shown as exchange. An exchange is not pre-emptable as under section 5 of the Punjab Pre-emption Act, 1991, the right of pre-emption arise only in case of sale of the immovable property as defined under section 2(d) of the Act ibid. The concurrent findings on the question of fact recorded by two courts of competent jurisdiction or proper appraisal of the evidence cannot be interfered with in exercise of revisional jurisdiction under section 115, C.P.C. For the reasons supra, the revision petition is without merits and the same is hereby dismissed in limine. K.M.Z./M-32/L Revision dismissed.