P L D 1983 Peshawar 205 (PLP)

Suit No. 43/1 of 1980 (1) Whether the plaintiff has got a cause of action? (2) Whether the plaintiff has got a superior right of pre‑emption? (3) Whether the sale consideration was fixed and paid in good faith? (4) Market value? (5) Whether the plaintiff is entitled to the decree prayed for? (6) Relief.

5. After recording such evidence as the parties wished to adduce, the learned trial Court held that the transaction, subject‑matter of Suit No. 34/1 was that of exchange and, therefore, it could not be pre‑empted. In result he dismissed the suit of the pre‑emptor. The other Suit No. 43/1 was also dismissed on the ground that in consequence of the exchange transaction, subject‑matter of other Suit (No. 34/1), the transferee became co‑sharer in the land, therefore, the pre‑emptor could not claim preferential right of pre‑emption against him. The two suits were dismissed on 23‑11‑1980.

6. Dissatisfied with the judgments and decree of the trial Court, Nawab Khan, the pre‑emptor filed appeals in the Court of Additional District Judge, Nowshera, who after hearing the learned counsel for the parties decided that Mutations Nos. 3760 and 3761 to be 'fictitious' and consequently held the appellant entitled to possession of the land, in exercise of right of pre‑emption covered by Mutation No. 3760. He assessed the market value of the land to be Rs. 1,500 and, granted the pre‑emptor‑appellant decree for possession of the land on payment of Rs. 1,

500. Similarly vide his judgment of the same day (28‑9‑1981), he allowed the other appeal and held entitled the pre‑emptor to possession of the land on payment, of Rs. 30,

000. The plaintiff as had paid Rs. 7,000 as pre‑emption money, therefore, he directed him to deposit the balance within one month failing which his suit was to stand dismissed.

7. Mir Nawaz Khan, the transferee has filed revision petition against the judgments and decrees of Appellate Court.

8. Mr. Saeed Baig, the learned counsel for the pre‑emptor‑respondent raised preliminary objection to the maintainability of the revision petitions. It was contended that ire invoking the revisional jurisdiction of this Court under section 115, C. P. C., the petitioner was required to prove that his case was covered by one of the three contingencies contemplated by the section, It was claimed that as the case of the petitioner did not fall within the ambit of anyone of the provisions of the said section; therefore, the revision petitions were not tenable in law.

9. It was, on the other hand, argued by Mr. Abdur Rehman Khan, the learned counsel for the petitioner that the lower Appellate Court has misread the evidence on record and in result has come to an erroneous conclusion. In the circumstances, it would be deemed that the said Court has acted with material irregularity and consequently its decision was open to revision by this Court.

10. In order to see the case of the parties, in its true perspective, it may be necessary to refer to section 115 of the Civil Procedure Code. It provides:‑ (1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears‑ (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction ‑illegally or with material irregularity. the High Court may make such order in the case as it thinks fit.

11. It was the case of the learned counsel for the respondent that admittedly the lower Court of appeal had jurisdiction to decide the question with regard to the real nature of the transaction and that it determined the said question, therefore, it cannot be stated that it acted illegally or with material irregularity that his action could be impugned in revision.

12. In reply it was argued that the lower Appellate Court having ignored material evidence and that the original finding having been disturbed on grounds entirely untenable, hence revision petitions were legal. In support he cited Dwarika v. Bagawati (A I R 1939 Rang. 413), Muhammad Sadiq v. Aziz Jan (1982 C L C 126), Muhammad Sharif v. Abdul Majid (1982 C L C 208), and Iltafur Rehman v. Bosten (1968 S C M R 1350).

13. In view of the allegations that the lower Court of appeal ha failed to appreciate the evidence and that its order is based on misreading of evidence, this Court would have to jurisdiction to entertain the revision) petitions.

14. There is no dispute between the parties that the land subject‑matter of the two suits was transferred in favour of Mir Nawaz Khan, the petitioner on the basis of two Mutations Nos. 3760 and 3974. The former is with regard to transfer by way of exchange of 2 Kanals 6 Marlas of land out of Khasra No. 2237 and the latter covers the sale of 33 Kanals 10 Marlas of land out of the mentioned Khasra number. Pre‑emptor‑respondent claimed that the transaction covered by mutation No. 3760 though shown to be that of exchange but in fact was a sale and he having preferential right of pre‑emption against the transferee was, therefore, entitled to possession of the land by pre‑emption. As the result of a finding will determine the right of pre‑emption in respect of the two transactions, therefore, it is deemed imperative that it is given priority in discussion.

15. I am not unmindful of the legal position that it is open to a pre‑r emptor in a suit of pre-emption to have it declared that the transaction is of sale although in appearance it is not so. He has this right under the language of section 4 of the N.‑W. F. P. Pre‑emptier. Act, 1950, and the Court will have to declare a transaction to be that of sale if on the evidence adduced, it is satisfied that the material brought on the record indicates most unequivocally that the intention of the parties to the transaction was tot make a permanent transfer by way of sale. I am not, unmindful of the fact that in law the transferee can safeguard him interest by adopting a device to non‑suit the pre‑emptor. It has, however, been held is P L D 1960 Lah. 461 at page 468 that:‑ "There is a difference between a device and disguise. A sale, for instance, may be disguised as a mortgage or Hiba‑Bil‑Iwaz. When this is done, evidence can be led to reveal the real nature of the transaction by taking off the mask from the face of the transaction, so that the Court may discover whether the right of pre‑emption has been successfully eluded or not. This, however, does not mean' that a ligitimate device becomes a disguise merely because the object is to defeat the right of pre‑emption. The essential difference between a disguise and device is that a disguise is utilised to hide the reality by a counterfeit appearance. A false exterior is given to conceal the inner reality. In a device, the appearance is not false but a method is invented or adopted to evade the ordinary or normal consequences of a situation and thus to achieve an object. In a device, there is always a scheme, a design or a stratagem which is real and not false." It was held in the case reported as P L D 1961 Pesh. 62 at page 63 that: "For a transaction to be a sale, it is necessary that a price in cash must have been paid for the thing on one side and cash price for it on the other." In an earlier authority reported as A I R 1939 Lah. 343; it was held that.‑ "The proposition that a transaction cannot be considered to be a sale for the purposes of the Pre‑emption Act unless the consideration consists mainly, if not wholly, of cash, is not a correct proposition of law. It is a question of fact for the Court to consider in each case whether or not there has been a sale and the consideration is only one of several factors to be considered in arriving at that conclusion of fact."

16. Having covered the legal position with regard to the transaction in question, I may now refer to the evidence produced by the parties to prove their respective contentions. The plaintiff‑respondent, in addition to himself, has got examined Patwari of the Circle and Hamesh Gul, the transferer, to establish his claim. Mir Nawaz Khan, the transferee appeared in his own defence. According to the pre‑emptor, the land in question was transferred for sale amount of Rs. 1,

500. He has, however, made it clear that he was not present at the time of attestation of the impugned mutation. Similarly he has stated that no sale amount was paid in his presence. His evidence, in the circumstances, would be of no help, in deciding the question under consideration. Mushtaq Hussain, the Patwary has only stated that possession has not been transferred in favour of the transferee. This alone, if even admitted, however, would not be sufficient for holding the transaction to be that of sale. Hamesh Gul, the transferor, has deposeu that he had been paid Rs. 1,500 as sale price and that no land in lieu of it was alienated to him. He has denied in cross‑examination that the two Mutations Nos. 3760 and 3761 were attested on the same day. He being a party to the transaction as shown by the mutation, undoubtedly attested on his behest and admission, cannot be permitted to controvert its nature. The weakness of his statement otherwise is also evident when he denies that the two mutations were attested on different dates contrary to the certification of the Revenue Officer. No reliance, therefore, can be placed on the testimony of such a witness.

17. On the other hand, Mir Nawaz Khan, the transferee has testified to the effect that land for land was transferred and in view of the authority referred to above, he could through legal device defeat the right of pre‑emp tion of perspective pre‑emptor. In the circumstances, the transaction could not be held to be other than exhibited by the mutation, on the ground that was effected to avoid suit of pre‑emption.

18. Consequently, I am of the opinion that the transaction, as stands is that of exchange and no, suit of pre‑emption with regard to hence, was competent. This finding will also result in non‑suiting of the plaintiff‑respondent, because on account of this exchange, the transferee has become co‑sharer in the same Khasra number and as such, would have preferential right of pre‑emption against the pre‑emptor/respondent.

19. In result I would accept the two revision petitions, set aside the orders of the First Court of Appeal and restore that of the trial Court. The suits of the pre‑emptor shall stand dismissed. The parties in the circumstances, however, would be left to bear their own costs. M. Y. H. Petitions accepted.