1976 PLP 104 (SCMR)

ANWARUL HAQ, J.‑‑This petition seeks leave to appeal against the judgment of the Lahore High Court dated the 11th of February 1975 in a second appeal arising out of a pre‑emption suit instituted by the respondent Mst. Khanzadi against the petitioner in respect of an area of agricultural land situate in Mauzia Fazilpur in district Dora Ghazi Khan. The suit was contested by the vendee on the ground that the transac tion was one of exchange and not of sale. This plea found favour with the trial Court, which accordingly dismissed the suit on 23‑7‑1959. This finding was, however, reversed in first appeal by the learned District Judge, Dera Ghazi Khan, by his judgment dated the 20th of April 1960 holding that the surrounding circumstances of the transaction clearly showed that it was a sale and not an exchange. This judgment and decree of the learned District Judge has been upheld in second appeal by the High Court, although for somewhat different reasons. The High Court has itself gone through the relevant evidence and come to the conclusion that the transaction was indeed a sale and, therefore, pre‑emptible. It is submitted on behalf of the petitioner that the High Court has misread the relevant evidence in coming to the conclusion that the transaction amounted to a sale. In support of this submission the learned counsel has drawn our attention to the various reasons given by the High Court and has endeavoured to argue that the reasons are not sustainable on the record. We regret we are not at all impressed by the submissions made by the learned counsel for the petitioner. It will be noticed that the question whether a particular transaction is one of sale or exchange, is primarily a question of fact. In the instant case, we have the concurrent findings of the learned District Judge and the High Court to the effect that the, transaction amounted to a sale and not an exchange, It is true that the High Court has itself examined the relevant evidence before upholding the finding recorded by the learned District Judge in First Appeal. We' have not been able to discover any misreading of the relevant evidence in.: this behalf. All the circumstances noticed by the High Court were directly relevant to the question in issue, particularly the disparity between' the area alienated by the vendor and the one said to have been given in exchange by the present petitioner, as well as the respective locations of the two areas. It may be stated that the petitioner obtained 64 kanals and 12 marlas of land in exchange for nearly 34 kanals of his own land. It was also found that the land in suit was situated near the town of Fazilpur as compared to the area said to have been handed over to the vendor. The High Court also took note of the tact that the vendor had not even obtained possession of the land given to him in exchange, nor did he know the names of his co‑sharers in the new Khata. We consider that on the basis of this evidence, and in the light of the circumstances, the Courts below were right in taking the view that this was in reality a transaction of Rate and not of exchange the petition, therefore, fails and is hereby dismissed. Petition dismissed.