1 990 C L C 533 (PLP)

GUL ZARIN KIANI, J.‑‑These three connected matters, two petitions for civil revision and a first appeal which emerge from identical facts and involve a common question of law for decision are proposed to be dealt with in a single judgment. By deed registered on 17‑2‑1980, one Mukhtar Ali sold 200 kanals of land situated in Chak No.24/A Liaqatpur to Mohammad Sadiq, Mohammad Jamil and Jamal‑ud‑Din at the sale price of Rs.4,25,

000. Barkat Ali, Khurshid Ahmad, Umar Din and Sabir Ali sons of Ch. Jan Mohammad as owners of the estate claimed pre‑emption in respect of the above sale and brought civil suit to recover possession of the land sold on 6‑5‑1980 in the civil Court at Liaqatpur. Price paid for the land was disputed. It was alleged that it was sold for Rs.3,25,000 only and an exaggerated sale price was stated to have been fixed and paid merely to stave off pre‑emption. Vendees submitted their defence and resisted the suit. It was pleaded that plaintiffs had no cause of action; that valuation for purposes of payment of court‑fee was under‑assessed and consequently, less court‑fee was paid on the plaint; that plaintiffs had no preference and vendees in the matter of ownership of land in the estate were at par with them, gift deed dated 17‑4‑1980, report Rozenamcha No.402 dated 1‑5‑1980 and gift Mutation No.237 sanctioned on 2‑5‑1980 was relied upon that;land was purchased for Rs.4,25,000 and sale price was fixed in good faith and was actually paid; that quality of land in dispute was improved upon with an expenditure of Rs.20,000 which the vendees were entitled to be reimbursed. On 5‑11‑1980, the trial Court settled necessary issues for determination and postponed the suit for the evidence of parties. On 15‑4‑1981, plaintiffs' counsel produced copies of sale‑deed Ext.Pl, jamabandi for the suit land Ext. P2, Jamabandi showing plaintiffs' ownership of land in the estate Ext. P3 and closed affirmative evidence except for the statement of one of the plaintiffs to be recorded both in affirmative and rebuttal after close of the defendants' evidence. Vendees produced Khurshid Ahmad Patwari Chak No.18 DW.1 to prov‑ report Rozenamcha No.402 of 1‑5‑1980 Ext. Dl, Haji Mohammad Ibrahim, Fazal Mohammad, Mohammad Akram D.Ws 2 to 4 to establish payment of stated sale price and improvements upon the land in suit, Mohammad Sharif DW5 to prove donation of 2 kanals of land to the vendees vide Ext. D6 in addition to recording statement of Haji Mohammad Sadiq D.W. 6 who deposed about donation of 2 kanals of land from Mohammad Sharif and payment of sale price. In support of the oral evidence, copy of gift Mutation No.237 Ext.D.7 press publication Ext. D8, an extract from crops inspection register Ext. D9 were tendered in evidence and defence was closed on 28‑10‑1981. In rebuttal, Mukhtar Ali vendor P.W.1 Mohammad Hassan P.W.2 were examined on the point of actual payment of sale price of the land in suit. Barkat Ali one of the plaintiffs as PW.3 deposed about their preferential right of pre‑emption and price paid for the land in suit. Upon examination of the recorded evidence, the trial Court concluded that plaintiffs had cause of action; that they had not waived their right; that valuation for purposes of court‑fee was correct; that transaction in question was pre‑emptible; that gift from Mohammad Sharif was in essence a pre‑emptible sale and that two pre‑emption suits having been decreed in respect thereof, vendees were bereft of necessary qualification to resist plaintiffs' superiority as owners of the estate; that stated sale price of Rs.4,25,000 was actually paid and the same was the market value of the land in suit; that improvements on the land in suit were not proved to have been made and vendees were not entitled to claim compensation; that there was no defect in the plaint. Consequent upon the above conclusions, pre‑emption suit was decreed on 2‑3‑1983 to the plaintiffs subject to their paying Rs.4,25,000 to the vendees as sale price of the land by or before 2‑5 1983 and in default, it was observed that suit shall be deemed to have been dismissed with costs. Aggrieved by judgment and decree of the trial Court, vendees have appealed to this Court. Their appeal is registered as R.FA. 15 of 1983. As said above, in defence to the pre‑emption suit filed against them, vendees had relied upon gift of 2 kanals of land from Mohammad Sharif which had placed them at par with the pre‑emptors in the matter of ownership of land in the revenue estate. This transaction of gift in Mutation 237 sanctioned on 2‑5 1980 was also subjected to two pre‑emption suits by Irshad‑ud‑Haq who claimed preference as real brother of Mohammad Sharif and the other by Barkat Ali, Khurshid Ahmad, Umar Din and Sabir Ali as owners of the estate. Latter suit was instituted on 11‑10‑1980 and the former on 2‑5‑1981. In the plaints in both the pre‑emption suits, pre‑emptors had alleged that apparent transaction of gift was a disguised sale for Rs.2,000 intended to defeat their pre‑emption. As the suits arose from a single sale, rival pre‑emptors were added as defendants in each other's suit. Both suits were consolidated for a joint trial, on 10‑12‑1981. Further proceedings were taken in Civil Suit No.605/1981 brought by Irshad‑ul‑Haq. It may be observed that Mohammad Sharif was also impleaded as defendant in the above pre‑emption suits. Defendants 1 to 4 (Mohammad Sharif exclusive) in a joint written statement submitted that transaction was in fact a donation simpliciter and not a pre‑emptible sale, and, therefore, plaintiffs had no cause of action. Defendants 5 to 6 submitted that Irshad‑ul‑Haq's suit was collusive with the alleged donees. Respective pleadings gave rise to following issues settled by the trial Court on 31‑1‑1982. (1) Whether Suit No.605/81 is time‑barred? OPD (2) Whether Suit No.605/81 was not presented in proper court, if so, its effect? OPD (3) Whether Suit No.605/81 is benami and collusive with defendants 1 to 3? (O.P. Rival Pre‑emptors) (4) Whether pre‑emptors in Suit No.585/81 have waived their right of pre emption?O.P.D 1 to 3. (5) Whether Suit No:585/81 is collusive with defendants Nos.l to 3? (6) Whether the plaint in Suit No.585/81 is not properly valued for purposes of court‑fee, if so, what is correct valuation and its effect? O P D 1 to 3. (7) Whether the pre‑emptors have no cause of action and suits are bad for non‑joinder of necessary party Mst. Jamila Bibi and also bad for partial pre‑emption? O P D 1 to 3. (8) Whether contesting defendants are entitled to get special costs? (9) Whether the impugned transaction is in fact a sale? O P P, O P D 5 to 8. (10) If issue No.9 is proved whether pre‑emptors have superior right of pre emption against defendants Nos.l to 3 and who among the pre‑emptors has superior pre‑emptive right? OPP, OPD 5 to 8. (11) What was the market value of the suit land at time of transaction? (12) Relief. Rival parties gave evidence in support of the issues, burden of proof whereof rested upon them. Upon its review, learned Civil Judge Liaquatpur found that suit instituted by Irshad‑ul‑Haq was filed in time and the plaint was presented to the proper officer; his suit was neither benami nor suffered from defect of collusion; that he had not waived his right; that connected Suit No.585/81 was not collusive with defendants 1 to 3; that plaints in the pre emption suits were correctly assessed and proper court‑fee was paid; that suit was not defective for non‑joinder of necessary party as transaction in Mutation No.237 in favour of defendants 1 to 3 and wife of Muhammad Sharif were divisible; that the transaction though shown as gift was in reality a sale; that both sets of pre emptors had superior right, Irshad‑ul‑Haq as real brother and Barkat Ali and his brothers as owners of the estate; that market value of the land in. suit was Rs.2,

000. Upon above findings, the trial Court decreed both the pre‑emption suits. It gave first decree to lrshad‑ul‑Haq and second to the inferior pre‑emptors, Barkat Ali etc conditional upon paying Rs.2,

000. First decree‑holder was directed to deposit the decretal amount till 2‑4‑1985. In default, second decree in favour of Barkat Ali etc. was to operate who were directed to deposit the sale price by extended date on 2‑5‑1983 and in default their suit was also to be dismissed with costs. Against this judgment and decree of the trial Court, three appeals were preferred to the District Court, two by transferees and one by the second decree holders Barkat Ali etc. By a common judgment, on 24‑3‑1984, learned District Judge Rahim Yar Khan, on nature of the transaction in Mutation No.237 differed with the learned trial Court and held that it was a gift and pre‑emption could not be claimed in regard thereto. Consequently, upon reversing finding on issue No.9, he accepted appeals No.67, 68/1983 filed by the transferees and pre‑emption suits filed against them were dismissed. Appeal of Barkat Ali etc. 90/13 of 1983 was also dismissed. Aggrieved by the consolidated judgment, Irshad‑ul‑Haq filed a petition for civil revision registered as C.R. 245‑D/1984/BWP. Barkat Ali etc. also challenged the above decision in Civil Revision 175‑D/1984/BWP. Seen from the above, only point of material consequence decisive of the whole controversy is about nature of the transaction in Mutation 237, whether it was a sale as held by the trial Court or a gift as found in appeal by the lower appellate Court. In case, it is held to be a gift, it shall prove fatal to the petitions for civil revision and a boon for transferees in first appeal‑‑R.FA. 15/1983. On behalf of Barkat Ali etc., Mr. M.M. Bhatti their learned counsel submitted that the transaction in Mutation 237 dated 2‑5‑1980 was an out and out sale but was given a false exterior of gift merely to defeat pre‑emption. Learned counsel argued that donor Mohammad Sharif was not related to the donees; he was not an affluent person but was a small peasant owning a holding of 20 kanals only and there was no good reason for him to make a gift to the transferees; possession under the alleged donation was not transferred; donation of two kanals from out of joint holding was hit by doctrine of `Musha', there are strong indications on record to prove that land in suit was sold for Rs.2,000 but was shown a gift to avoid pre‑emption; it was not a case of simple device but was a clear disguise which the Court was entitled to look through to discover its true character; that execution of gift deed‑‑certified copy Ext.D6 was not proved and total absence of its reference in gift Mutation 237 indicated its supurious nature; that finding on nature of transaction suffered from misreading of record as also misapplication of true legal principles applicable thereto and therefore it could be reviewed and upset in revisional jurisdiction. In support of the above contentions, learned counsel relied upon the cases of Chiragh Din v. Allah Din and .another‑‑70 Punjab Record 1916, Nar Singh Narain v. Sant Ram and others A.I.R. 1931 Oudh 424, Haji Said Muhammad Karam Shah v. Noor Tlahi Khan and another‑‑P L D 1962 (W.P.) Peshawar 44, Khan Muhammad Yusuf Khan Khattak v. S.M. Ayub and 2 others P L D 1973 S.C. 100, Hayat Ali and another v. Ghazan (represented by his heirs)‑‑1981 C L C 456, Ghazan and others v. Havat Ali and another‑‑1981 S.C.M.R. 492, Muhammad Ismail v. Taj Din‑‑1982 C.L.C. 717, Fateh Muhammad and 3 others v. Abdul Majeed and another‑‑P L D 1985 Lahore

650. Mr. Behram Khan learned counsel appearing for Irshad‑ul‑Haq petitioner adopted arguments advanced by Mr. M.M. Bhatti, Advocate and added that there were sharp and pointed discrepancies in the evidence of the transferees which had escaped notice of the lower appellate Court and that without adverting to and commenting upon the circumstances relied upon by the trial Court, judgment was erroneously reversed upon a superficial reading of record. Ch. Asghar Ali Bhatti, Advocate, learned counsel for the transferees respondents in Civil Revisions and appellants in R.FA. 15/1983 argued that onus to prove that transaction was different from its apparent character lay upon the pre‑emptors and it was for them to establish affirmatively that it was not a gift but a sale. Evidence led by them failed to sufficiently discharge the burden of proof and any alleged weakness appearing in defence evidence shall not materially avail them; that the transaction could not have been concluded under public gaze in presence of rank strangers to create evidence; witnesses for the pre‑emptors were not reliable and they spoke about improbable events; that hearsay evidence besides being inadmissible was insufficient to. dislodge the real character of transaction which was a gift; that strangers to the gift could not attack its validity on the ground of absence of transfer of possession and Musha; that there was no evidence to establish passing of sale price which is sine qua non for its existence; that certified copy of hiba Ext. D6 was a properly proved document and in absence of any objection as to its mode of proof taken at the appropriate time of its tender in evidence, objection in revisional jurisdiction could not be urged; that finding of fact recorded on nature of transaction by the lower appellate Court was not reviewable in revision. In support of the above contentions, reliance was placed upon Dost Muhammad Khan v. Imam Bakhsh‑‑PLD 1971 Peshawar 150, Mst. Umar Bibi and 3 others v. Bashir Ahmad and 3 others 1977‑‑SCMR 154, Reham Ali and another v. Abdul and 3 others‑‑1980 CLC 1110 SC (A J & K), Ahmad Yar and another v. Muhammad Aslam‑‑1981 CLC 527, Sardar Khan v. Ghulam Sarwar‑‑P L D 1982 A J & K 128, Ghulam Muhammad v. Kh. Nazimuddin and another‑‑1983 CLC 117 (Rawalpindi Bench). Furthermore, to support the contention that finding of fact though erroneous unless perverse and suffers from an error of jurisdiction or material illegality or irregularity on account of breach of procedural law, could not be upset or reviewed in revisional jurisdiction, learned counsel placed reliance upon N.$. Venkatagiri Ayyangar and another versus The Hindu Religious Endowments Board, Madras‑‑A.I.R. 1949 Privy Council 156, Abdul Majid and others v. Khalik Ahmad‑‑P L D 1955 Federal Court 38, Kanwal Nain and 3 others v. Fateh Khan and others‑‑PLD 1983 SC 53, Haji Mohammad Zaman v. War Ali Khan and others‑‑PLD 1986 SC 88, Nasar Abbas v. Manzoor Haider Shah‑‑PLD 1989 SC

568. As observed elsewhere in the judgment, sole question surviving for decision is about the nature of transaction, whether it was a gift or a sale. Obviously, its decision depends upon scrutiny of evidence led by the parties. Therefore, survey of the evidence, oral and documentary appears necessary, more so, because Courts of fact had differed in their conclusions. In this view, I shall attempt a review of the evidence to the extent of its relevance to discover the nature of transaction and its effect upon the rights of the parties. This course shall also assist, whether record was correctly read. But before I embark upon the above exercise, it is necessary to state certain legal principles and provisions .in statute law bearing upon the decision of the issue. It is well‑settled that pre emption is a right of substitution. Preference is its essence. It is a right to acquire three kinds of properties in preference to less favoured persons. It arises on sales or foreclosure of right to redeem as the case may be. Section 4 of the Punjab Pre emption Act, 1913 provides "Nothing in this section shall prevent a. Court from holding that an alienation purporting to be other than a sale is in effect a sale". There is no dearth of authorities that the Court can discover true nature of transaction though it was disguised in different form by parties to it. However, onus of proof that a particular transaction which looked differently than what in reality it was, is upon the pre‑emptor who is not bound by its outer form. Section 92 of Evidence Act since repealed/Article 102 of Oanun‑e‑Shahadat, 1984 neither restricted nor impaired the right of the pre‑emptor to give evidence for establishing true nature of the transaction to show that it did not represent the real mind of the parties or contract concluded between them. Amplitude of language in section 4 of the Pre‑emotion Act gave unrestricted right to the plaintiff to prove real nature of transaction by giving direct and circumstantial evidence and also did not place any fetter or embargo upon jurisdiction of the Court to consider and pronounce upon the true nature and kind of transaction. Refer Tara Chand v. Baldeo‑‑117 Punjab Record 1890, Gul Muhammad v. Sabz Ali Khan A.I.R. 1919 Lahore

127. In Than Singh and others v. Nandu Kirpa Jat and others‑‑A.I.R. 1978, Punjab and Haryana 94, Full Bench of the Court upon extensive survey of the existing case‑law observed: "(1) That it is open to the plaintiff (pre‑emptor) to establish that the transaction in suit is in reality a sale and not an exchange or gift and that the Courts can enquire into the true nature of such a transaction. Under the Evidence Act also, there is no bar to lead evidence to prove certain transaction as a sale; (2) that the vendor can defeat the right of the pre‑emptor by all legitimate means; (3) If two views are possible, then the one which defeats the right of the pre -emptor has to be accepted; and (4) If the Courts below have arrived at a finding that a certain transaction is a sale, exchange or gift, as the case may be, then this finding is not open to scrutiny in the second appeal." In our judgment, above statement correctly sums up the law and we agree with it. Therefore, the contention that pre‑emptor could not attack the validity of gift on grounds of non‑delivery of possession for proving it to be a sale restricting his d right to give required evidence as also the power of the Court to decide on the nature of transaction was totally unsound. The contention disregards and runs contrary to plain language of Explanation to section 4 of Punjab Pre‑emotion Act. Accordingly, we express our inability to accept it. Decisions in Ahmad Yar and another v. Mohammad Aslam‑‑1981 C.L.C. 527, Sardar Khan v. Ghulam Sarwar‑ P L D 1982 A J & K 128, in which it was ruled that pre‑emptor had no locus to challenge the gift on ground of non‑delivery of possession, in our considered opinion, does not represent the correct statement of law and we express our respectful dissent with it. Two decisions relied upon in case of ahmad yer (supra) did not pertain to pre‑emotion. Also, statement in para 150 of Mahomedan Law by D. F. Mulla did not attract itself to pre-emption which had its own peculiar features. Likewise, decision from Azad Jammu and Kashmir in case of Sardar Khan, to speak with respects, did not notice the above distinction. Also, there is no independent discussion on this point in the judgment. If pre emptor is once precluded to attack validity of gift on ground of non‑delivery of possession, a fortiori, he could not be permitted to challenge its validity on the non‑fulfilment of its other two essentials i.e. declaration by the donor and the E acceptance by the donee. Neither principle. nor authority could permit such a distinction. Confronted with this legal position, Mr. Asghar Ali Bhatti did not pursue his line of arguments on this point. Subject to rules of relevance and admissibility laid in the law of evidence, pre‑emptor was not precluded from giving evidence of his choice to prove the true character of the alienation. His right to give evidence was unrestricted. He could not be inhibited by the restraints spelt out in the afore‑noted judgments. He was free to show that the form of the transaction did not represent its true innerself. Similarly, Court was also free to remove the outer veil to discover true reality beneath it. Having stated law, stage is now set for us to advert to the moot point. Evidence led at the trial on the nature of impugned transaction consisted of two kinds, oral and documentary. First, we shall advert to the oral evidence. Barkat Ali etc.‑‑rival pre‑emptors produced Mukhtar Ahmad DW.1 who deposed that his shop was contiguous to the shop of Mohammad Sharif. At 11/12 o'clock about two years ago, Mohammad Sadiq, Wajid Ali (not produced) and Abdullah were sitting at the shop of Mohammad Sharif. He overheard their talk about sale of the land by Mohammad Sharif to Mohammad Sadiq etc. for avoiding pre‑emotion by Barkat Ali etc. Contract was settled at Rs.2,000 which, amount was brought by Wajid Ali and paid in his presence to Mohammad Sharif. Abdullah DW.2 deposed that Sadiq Ali etc. had approached him for sale of his land to them to save them from the pre‑emotion suit. Since he did not own land, he took them to Mohammad Sharif who agreed to sell his two kanals of land to them at the sale price of Rs.2,

000. Bargain was made in his presence. Wajid Ali brought the money and paid it to Mohammad Sharif. Oral statement of Barkat Ali was mere hearsay and being self‑interested was not of much avail. On behalf of Irshad‑ul‑Haq pre emptor, Mohammad Rashid, his Special Attorney and one Mohammad Haroon appeared. Their oral testimony was also hearsay and was of not material consequence to assist decision of the point in dispute. As far the direct testimony furnished by Mukhtar Ahmad and Abdullah D.Ws. it suffered from the inherent improbability. Sadiq Ali etc. could not have confided in Abdullah DW.2 to enable him to turn adverse to them and give evidence against them. It also looks rather improbable that Mohammad Sharif and Sadiq Ali etc. should settle the deal in open and invite strangers to witness its making when the deal was expected to be secret. It is true that direct evidence in such cases is rarely forthcoming because parties take all conceivable precautions to hide their intent and conceal the true nature of transaction. Nonetheless, pre‑emptor must bring evidence direct or circumstantial on the file from which it could be reasonably held that the transaction was what the plaintiff claims it to be. Difficulty of the pre‑emptor in procuring required evidence does not. lessen his basic burden of proof. Upon mere hearsay and incredible evidence as was led in the suit which could only raise a doubt on the kind of alienation, it could not be held that the transaction was ale for Rs.2,

000. As said above, it was for the pre‑emptors to prove that ansaction was a pre‑emptible sale. Transferees were on defence. Any weakness existing in their defence could not improve upon the plaintiffs' evidence which ad to stand scrutiny on its own merits. Nonetheless, when both parties had led evidence, Court must examine it and base its decision upon it. No part of evidence could be excluded from consideration. It is in this view that we propose to examine the defendants' evidence also. It consisted of the statements of :hurshid Mohammad Patwari who proved extract from daily diary Ext. I)1 and that it was either ante‑dated or forged, Rana Riaz Ahmad Ahlmad attached to Civil Court Liaquatpur who produced original file of Civil Suit fo.207/7‑5‑1980 containing original gift deed dated 17‑4‑1980 (marked Ext. D6),Mohammad Sharif who stated on execution of the gift decd, owned its correctness and donation of two kanals to the transferees, entry of gift mutation t his instance and subsequent attestation of mutation, Mohammad Sadiq who deposed that they had received two kanals from Mohammad Sharif as gift to save gem from the pre‑emption suit brought by Barkat Ali etc. Transferees are settled t Quetta but they are not strangers to Liaquatpur. Mohammad Sadiq was carried to a lady from Liaquatpur. His cousin also resided at Liaquatpur. It was also in evidence that Mohammad Sharif had friendly relations with them and was indebted to them because on his visit to Quetta, he was entertained and accommodated by them, therefore, there was some reason for him to donate his end which saved the transferees from the aggression of the pre‑emptors. It was of correct to suggest that Mohammad Sharif was an impecunious person. He ran shop in the town and earned good income. Therefore, if he chose to assist the friends in need, his action could not be described an improbable. Original deed is available on suit file No.207/1980. 1n this suit, Mohammad Sharif had appeared DW.5 on 28‑10‑1981 and proved its execution. Deed was marked as Ext. D6. suit file 207/1980 with original deed was summoned for proving certified copy of the gift in the pre‑emption suit brought by Irshad‑ul‑Haq, Mohammad Sharif pin appeared as DW.6 and subscribed to its execution and correctness. This me, certified copy of deed of gift was marked Ext. D.9 No objection was raised there to its admissibility or mode of proof, by the opposite party. This circumstance precludes subsequent objection about the manner and mode of i roof of the deed. It was nobody's case that gift deed was inherently inadmissible. abjection was as to the mode of its proof. There is authority for the view that H here objection as to the mode of proof of a document is not taken at the time ie document is sought to be put in evidence, parties are precluded to raise ejection on this score subsequently. Original gift deed is written on a four‑rupee amp paper. Stamp paper was purchased on 13‑4‑1980 by Mohammad Sharif. reverse of the stamp paper bears signatures of Mohammad Sharif. Gift deed was written on 17‑4‑1980. It was signed by Mohammad Sharif and bore signatures of Fazal Mohammad and thumb‑impression of Mohammad Ismail as its marginal witnesses. Neither stamp vendor nor marginal witnesses were produced in evidence but this factor shall not substantially assist the opposite party for the simple reason that objection was not raised about the mode of proof when the document was tendered in evidence by Mohammad Sharif who also deposed to its execution by him. There was no evidence to cast doubts upon its genuineness. A circumstance was much highlighted by Mr. M.M. Bhatti, Advocate and it was that Mutation No.237‑Ext.D7 was based on an oral gift and deed of gift was not referred to in it. It was submitted that had the deed gift been in existence, there was no acceptable explanation for withholding it from the Revenue Authorities. Reply by Mr. Asghar Bhatti was that as the deed of gift was unregistered the transferees may have thought it to be ineffective for creating rights in the land because of bar contained in section 17 of the Registration Act, and preferred to effectuate the gift of land through a mutation. Extract from roznamcha records report of gift by Mohammad Sharif on 1‑5‑1980. Khushi Mohammad Patwari D.W who recorded the above report at the instance of Mohammad Sharif gave evidence in support of its correctness at the trial. Mohammad Sharif also supported. Pursuant to the report, mutation No.237 was entered and sanctioned on 2‑5‑1980 by the Revenue Officer. It is a public document. Forgery or I fabrication ought not to be presumed. All official acts are presumed to have been properly and regularly performed. There is no evidence to cast doubts upon correctness of the sanctioned mutation. Also when the clear motive behind the gift was an unequivocal intention on part of the transferor to give a title to the transferees which would act as a safeguard against any claim for pre‑emption in respect of other property intended to be sold, the transaction for that reason f alone cannot be called sale‑‑Per Sapru, J. in Hari Singh and others v. Kallu and others ‑‑‑A.I.R. (39) 1952 Allahabad

149. There is also evidence to establish transfer of possession under the gift to the donees. Gifted land was part of a jointly owned land. Possession required to be given is such possession as the nature of the property admits. Musha was not attracted to invalidate the K transaction of gift which otherwise was complete in all respects and fulfilled the essentials of a valid gift under Muslim Law. See Aurangzeb and others v. Daud Khan and others‑‑P.L.D. 1957 (W.P.) Peshawar

85. Additionally, finding on the nature of transaction whether it was a gift or a sale was essentially a finding of fact and though the Courts below had differed on the kind of transaction yet in the absence of grounds specified in section 100 or 115, Civil Procedure Code, it is L the finding of the lower appellate Court that shall be held binding and conclusive. Cases of Abdul Majid and others v. Khalil Ahmad‑‑P.L.D. 1955 Federal .Court 38, Haji Mohammad Zaman v. Zafar Ali Khan and others‑‑P.L.D. 1986 S.C. 88, Nasir Abbas v. Manzoor Haider Shah‑‑P.L.D. 1989 S.C. 568 support the above view. At best, pre‑emptor could only create a doubt about the nature of transaction but mere doubt was not a substitute for proof which alone is the criterion for decision of the civil cases. Having regard to the aforesaid, we would accept the appeal‑‑R.FA. 15 of 1983/BWP, set aside impugned judgment and decree dated 2‑3‑1983 of the trial Court and dismiss the pre‑emption suit brought by plaintiffs‑respondents. As a natural corollary of the above, Petitions for Civil Revisions Nos.175/D‑1984/BWP and 245/D‑1984/BWP are dismissed, judgments and decrees dated 24‑3‑1984 of District Judge Rahim Yar Khan are affirmed. However, in view of the peculiar nature of the facts we leave the parties to bear their own costs. M.B.A./M‑180/L Order accordingly.