2011 SCMR 749 (PLP)

SARDAR MUHAMMAD ASLAM, J.

Appellant-defendant had exchanged her land with one Muhammad Aslam, through a registered exchange deed, situated in Pindi Gheb, District Attock. Thekedar Hassan Din, predecessor of respondent No.4 (a-t) instituted a suit for possession through pre-emption in the Court of Collector Pindi Gheb, claiming that land transferred by Muhammad Aslam, through exchange to appellant was a sale against a consideration of Rs.49,000 and has been disguised as an exchange to deprive him of his superior right of pre-emption as tenant on the suit land. Appellant filed her written statement pleading that the transaction was an exchange for all intent and purposes and, thus, is exempted from pre-emption. Issues were framed. Both appellant and respondents produced their oral as well as documentary evidence. Learned trial Court decreed the suit of pre-emptor vide judgment dated 15-7-1984 for a consideration of Rs.46,000 except khasra No.1161 to which extent it was dismissed. Appellant assailed the order before the Additional Commissioner, Rawalpindi, which was dismissed on 18-4-1985. Both the judgments and decrees were challenged in a Revision petition before the Member Board of Revenue, Punjab, Lahore. It came up for hearing before the learned MBR (Sheikh Maqbool Ahmad), who accepted the revision petition, set aside the order of both the learned Courts below and dismissed the suit of pre-emptor. Pre-emptor aggrieved and dissatisfied of the order passed by the MBR dated 6-7-1986, filed a review petition. It was heard by another learned MBR (Syed Sarfraz Hussain), who accepted the same vide his order dated 28-5-1989, by setting-aside order of the MBR dated 6-7-1986, restoring the Judgments and decrees of the Courts below. Defendant-appellant assailed the order dated 28-5-1989, passed in review, in a Constitutional Petition before the Lahore High Court, Rawalpindi Bench, which was dismissed by a learned Judge-in-Chamber on 22-3-2000, giving rise to this appeal, through leave of Court.

2. In support of the Appeal, learned counsel argued that M.B.R exercised his revisional jurisdiction in terms of para 25(7) of the Land Reforms Regulations, 1972, which could not be subjected to review as no provision for review is available in Land Reform Regulations, 1972. According to him, the order, thus, passed in review was without any lawful authority. It was contended by the learned counsel that plaintiff-respondent utterly failed to prove the transaction clothed as exchange, was in fact a sale.

3. On the other hand, learned counsel for the respondents argued that revision petition of the appellant before the M.B.R under section 84 of the Punjab Tenancy, Act, was, not maintainable in law and the order of M.B.R which set-at-naught the concurrent finding of facts, in the absence of any mis-reading or non-reading of evidence, was not sustainable in law.

4. We have considered the arguments of the learned counsel for the appellant as well as respondents, perused the impugned judgment and the documents attached to the file.

5. Plaintiff-respondent instituted a suit for pre-emption against the transaction of a registered exchange on the ground that it is a sale and disguised as exchange by the appellant. Issue No.1 was framed on the controversy, whether it was a sale or exchange? OPD. Before attending to the competency of review petition, it is necessary to have a glance to the evidence produced by the plaintiff in regard to the nature of transaction. P. W.1 Nawab, deposed that he was present at the kothi of Nawabzada Sarfraz Khan. Aslam Khan, was purchasing from Nawabzada, the land located near the brick-kiln, which was under cultivation of the pre-emptor. Bargain was settled against consideration of Rs.49,

000. In cross- examination he stated his unawareness of khasra number of the land. Consideration money was not paid in his presence. P.W.2 Ghulam Muhammad, stated that Aslam Khan had disclosed him, on his inquiry, that he had settled a bargain of transfer of land in favour of Nawabzada. Mehboob Alam had paid a sum of Rs.49,000 to Aslam Khan. In cross-examination he admits of working on the brick-kiln of the pre-emptor. He denied for want of knowledge registration of a theft case against him and his conviction and sentence. He went to Tehsil office to have an application written for issuance of cement. Payment was made at the main gate of Tehsil. He went back without an application for issuance of cement. P.W.3 Taj Muhammad, stated that Aslam Khan told him on inquiry that he is transferring land to Nawabzada. Fateh Khan, had called Qazi Mehboob, Munshi, who paid a sum of Rs.49,

000. His acclaimed presence in Tehsil, was on account of obtaining a copy of register sale deed in which he was allegedly cited a marginal witness. He could not tell the name of Vendee and went back without copy and thereafter, never visited for the said purpose. Hassan Din, P.W.4 deposed that the land in dispute was sold in favour of the appellant against a consideration of Rs.49,

000. Nawabzada Sarfraz Khan, secured the land in the name of her grand daughter, and disguised it as exchange. Suit land is in the limits of town committee and is cultivated. Haji Ghulam Ahmad, Petition Writer, appeared as D.W.1 and stated that he authored exchange deed Exh.D

1. Sardar Khan, Sarbrah Lumberdar, a marginal witness of Exh.D 1 deposed that exchange deed was registered in the house of Malik Ghulam Muhammad Khan, father of the appellant and no money was paid. D. W.3 Mehboob' Khan, attorney of Malik Ghulam Muhammad Khan, deposed that he was present when Exh.D 1 was registered, and, that he had not paid any amount to Muhammad Aslam, other party to the exchange on behalf of Appellant or on direction of her father.

6. The appellant has discharged the initial onus by producing Exchange Deed Exh.D-1, and, its marginal witnesses to show that no amount was paid at the time of its execution' and registration. It was a simple transaction of exchange between the appellant and Muhammad Aslam. Both the lands, subject-matter of exchange are almost of equal acreage and located in the same village. Pre-emptor cannot take benefit of the only fact that the land subject matter of the suit is within the limits of town committee while the other is outside the town committee. Satisfactory evidence of payment of price in cash is not available. Only factor that exchanged land in lieu of suit land is located outside town committee will not lead to a conclusion that transaction as a sale. In "Bagi Jan and 6 others v. Haji Mama Khel and others" (1992 SCMR 1785) it was held that genuine Exchange deed entered into between parties to avoid pre-emption suit is a permissible device. Reference can also be had to "Sher Azam v. Fazle Azim Shah" (1972 SCMR 649) for the view that payment in cash is Sine qua non to establish sale. The transaction in dispute was, thus, an exchange and not sale. Concurrent findings of facts are not sacrosanct to the extent that decisions based on no evidence are immune from interference.

7. Right of pre-emption was conferred on tenant and forum of appeal and revision were provided by addition of paras Nos.5, 6, 7, 8 and 9 in para 25 of the Land Reforms Regulations, 1972, through Act XLVIII of 1976. Right of appeal to Commissioner under para 25(6) and Revision under para 25(7) before M.B.R was made available. No provision for review was kept in the Regulations qua pre-emption. Review is a substantive right and is exercisable only if backed by a statutory provision of law. Reference can be had to "Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others" (PLD 1970 Supreme Court 1). Assuming that power of review was available, it is exercised only if an error is apparent on the face of record. It is not heard as a regular appeal. Order in review did not meet the requisites provided in Order XLVII, C.P.C. See "Riaz Hussain and others v. Board of Revenue and others" (1991 SCMR 2307). Power of review, under section 8 of the Board of Revenue Act, 1957, were wrongly exercised in proceedings arising out of Land Reforms Regulations, 1972, which had its own inbuilt procedure. Review petition was, thus, incompetent. Consequently, the order of the learned Judge-in Chamber affirming review order is not sustainable. Resultantly, this appeal is accepted, order of M.B.R in review and of learned High Court impugned herein, are set aside and that of M.B.R dated 6-7-1986 is restored, whereby suit of pre-emptor was dismissed. There is no order as to costs. M.H./B-9/SC Appeal allowed.