P L D 1983 Peshawar 13 (PLP)

Azizur Rehman Baloch for Respondent. Date of hearing 18th September, 1982. The facts giving rise to this revision petition are that Muhammacl min (petitioner) instituted the present suit against Ghulam Yasin (respond ent) for possession by pre‑emption of agricultural land measuring 9 kanals 6 marlas comprising of Khasra number '120 situated in village Kurer, Tehsil and District D. I. Khan on payment of Rs. 490 as sale consideration. It vas alleged that the land in suit was actually sold to Ghulam Yasin defendant/respondent but it was given the colour of an exchange with a view o frustrate the right of pre‑emption of the plaintiff/petitioner. The defendant -respondent controverted the claim of the plaintiff and stated that the land n suit was bona fide obtained by him in exchange from Mst. Sabhai sad that t was not a sale, hence the pre‑emption suit was incompetent. The learned trial Court vide judgment dated 23‑1‑1976 held the transaction in question as i sale and granted the plaintiff decree prayed for on payment of Rs. 1,421 the defendant‑respondent feeling aggrieved preferred an appeal before the additional District Judge, D. 14 Khan which was, however, accepted on 4‑9-1976 and the judgment and the decree of the trial Court were set aside. The learned Additional District Judge held the transaction in question as in exchange on the ground that the plaintiff pre‑emptor bad failed to prove t a sale as no evidence was led to prove the payment of the sale considerat ion. The present revision petition is directed against the aforesaid judgement and decrce of the learned Additional District Judge D. I. Khan.

2. The learned counsel for the petitioner contends that even if there vas no evidence of payment of the sale consideration, the circumstances of he case can be examined to find out the real nature of the transaction. He urged that the fact that Mst. Sabhai who got the land in exchange from Ghulam Yasin (defendant‑respondent) sold it on the same day in favour of one Ahmed; would show that she was interested in getting the money end not the land which she purportedly obtained from Ghulam Yasin in exchange. Thus according to the learned counsel this circumstance, by itself, was sufficient to indicate that the transaction was that of sale and not an exchange.

3. From the evidence on the record it appears that by mutation No. 234 Mst. Sabhai transferred the suit land by way of exchange to Ghulam Yasin defendant (respondent) and by mutation No. 235 Ghulam Yasin defendant gave her an equal areas of the land in exchange. By a third mutation of the same date bearing No. 236, Ust. Sabhai had sold the area thus obtained by her in exchange in favour of one Ahmed son of Ghulam Hussain for Rs. 2,

000. The learned counsel pointed out that the fact that all the aforesaid three mutations were attested on the same day would go a long way to show that there was no genuine transaction of exchange between Mst. Sabhai and Ghulam Yasin (defendant) and the transaction which was in fact a sale was diguised as an exchange with a view to defeat the plaintiff's right of pre‑emption. In the trial Court Muhammad Amin Plaintiff, beside his own statement produced Atta Muhammad Patwari as P. W. 1 who said nothing to support the plaintiff's contention that the exchange transaction was in fact a sale. The plaintiff himself stated that Mst. Sabhai had sold the land in suit in favour of Ghulam Yasin at the rate of Rs. 50 per Kanal. When cross‑examined he stated that he was not present when the mutation in question was attested and that one Usman had informed him in his village about the payment of the sale consideration but the plaintiff failed to examine the said Usman as a witness in the case. On the other band, Ghulam Yasin appeared as his own witness and stated that the land in suit was obtained by him in exchange for which no payment has been made and that the mutations of exchange have been attested and possession of the exchange areas have also been transferred. In cross‑examination he denied his relationship with Mst. Sabhai.

4. From the perusal of the record it is abundantly clear that the plaintiff-petitioner had failed to prove the passing of the sale consideration of the transaction in dispute.. There is no evidence that any bargain of sale was struck between Alst. Sabhai and Ghulam Yasin (respondent). The only circumstances on which the learned counsel for the petitioner relies is that on the same day Mst. Sabhai had sold the land obtained by her in exchange, to one Ahmed from which he wants the Court to draw an inference that exchange transaction in dispute was in fact a sale. The learned counsel referred to Gul Muhammad v. Sabaz Ali Khan (49 I C 275), in support of his contention wherein an exchange was effected between Khair Muhammad and Haider Khan on the other. But two days after the exchange Khair Muhammad and Haider Khan sold the land taken by them in exchange and thus it was held that they had not desire to acquire for themselves the land which they purported to have taken in exchange and that the cloak of an exchange was employed in order to effect the transfer in favour of Gut Muhammad without exposing him risk of an attack by a pre‑emptor. But in the case in band in the absence of any relationship between Mst. Sabhai and Ghulam Yasin or any other similar reason, it is not possible to draw the inference that Mst. Sabhai wanted to protect Ghulam Yasin from the risk of an attack by the prospective pre‑emptor. In the cited case it is also not clear as to whether the land obtained in exchange by Khair Muhammad and Haider Khan from Ghulam Muhammad was sold by them, 2 days after the transaction, in favour of the same Gut Muhammad or a stranger. But in the present case it appears that the land obtained by Mst. Sabhai in exchange was sold by her in favour of one Ahmed who has not been shown to have any concern or relationship with Ghulam Yasin nor is there any suggestion that the transfer in favour of Ahmed was effected for the benefit of Ghulam Yasin. The learned counsel then referred to Muhammad Ashraf Khan v. Mst. Said Jan (1970 S C M R 775), wherein the transaction was held as an exchange and not a sale as the subsequent transfer by sale by Allah Ditta in favour of Muhammad Akbar took place a year and three months after the exchange. Thus it was held that the transaction entered into was an exchange as subsequently the land was sold to the mortgagee of the land and no collusion between Muhammad Akbar, Allah Ditta and Bahadur Khan was established. In the case in hand also the plaintiff has failed to prove any collusion between Mst. Sabhai, Ghulam Yasin and Ahmed, the purchaser from Mst. Sabhai. The mere fact that Mst. Sabhai has sold the land obtained by her in exchange in favour of Ahmed on the same day would not necessarily justify an inference of collusion between the afore said three persons. The learned counsel then referred to Haji Syed Muhammad Karam Shah v. Noor Elahi Khan (P L D 1962 Pesh. 44), wherein it was held that it is true that no direct evidence has been led by the plaintiff to show the transaction being a sale but in the nature of things such evidence could not be forthcoming, and the learned Additional District Judge was justified in considering the surrounding circumstances, such as the poor financial status of the alleged donor, that he was a drug addict, and by the transaction in dispute he parted with the last remaining portion of his land thus leaving no means of livlihood for himself and his family. Obviously the cited case is distinguishable as the circumstances explained therein are not available in the case in hand and it also relates to a transaction of gift and not an exchange. The learned counsel then relied on Hayat Ali and another v. Ghazan (1981 C L C 456) wherein it was held that in appropriate cases the Court can treat a gift as a sale even though actual passing of consideration is not proved. The cited case is distiguishable not only because the question involved related to gift, but also because the Court came to a finding that the respondent had failed to establish that the respondent had failed to establish that there were any services rendered by the first respondant qua the second one for which the later would have made the gift in favour of the former. Thus in the circumstances, the Court concluded that there was no justification for effecting the gift and the transaction was held to be a disguise for defeating the pre‑emption suit. But in the case in hand there is nothing on the record that Mst. Sabhai had effected a sale in favour of Ghulam Yasin and the transaction was disguised as an exchange. Assuming that the exchange was a device reported to by Ghulam Yasin to defeat the pre‑emption suit but this fact would not make the transaction an illegal one.

5. The learned counsel for the respondent argued that in order to prove the sale the passing of sale consideration must necessarily be proved and even if the surrounding circumstances are taken unto consideration there is nothing on the record to suggest that the impugned transaction was in fact a sale. Reliance is placed on Sher Azam v. Fazal‑e‑Azim Shah (1972 S C M R 649), wherein it was held that:-‑ "The Courts below have rightly observed that for a transaction to be sale it is necessary that price in cash must have been paid for the thing sold, and that there must be transfer of ownership on the one side and cash price for it on the other. In the present case, Courts below were not satisfied that price in cash was paid, and from the mere fact that possession of both the properties remained with the respondent or that the areas and the qualities of the properties said to be exchanged were unequal, no irresistible inference of sale could be drawn." The learned counsel for the respondent also relied on Faqir Shah v. Khalo Khan (P L D 1951 Pesh. 14), wherein certain circumstances were brought to the notice of the Court to show that the exchange transaction was in fact a sale but the Court held the transaction as an exchange as no evidence was produced by the plaintiff to show that any sale consideration has passed between Muhammad Shah on the one side and Hukmat Khan and Ajab Khan on the other.

6. In the circumstances of the present case it is difficult to agree with the learned counsel for the petitioner that the mere fact that Mst. Sabhai had sold the land, obtained by her in exchange from Ghulam Yasin, on the same day in favour of one Ahmed, would necessarily lead to the inference that the impugned transaction of exchange entered into between Mst. Sabhai and Ghulam Yasin (respondent) was in fact a sale. At the most it can be A said that Ghulam Yasin resorted to this device of exchange to defeat the pre‑emption suit of the petitioner. Instead of purchasing the property, Ghulam Yasin got it by exchange from Mst. Sabhai, and in lieu there of he had parted with his own land in her favour and she, having become the owner of the land thus obtained from Ghulam Yasin, was legally competent to transfer it by way of sale in favour of a third person. The sale effected by MR. Sabhai of the land obtained by her in exchange would not lead to the conclusion that the land given by Mst. Sabhai to Ghulam Yasin in exchange was also a sale because it is clear that in lieu of her land she got an equal area of the land of Ghulam Yasin, which she subsequently sold to one Ahmad. Not only that there is no evidence of the passing of the sale consideration between Mst. Sabhai and Ghulam Yasin, there are y no circumstances from which it can be concluded that the transaction being one of sale was disguised as an exchange.

7. In the circumstances the finding arrived at by the learned District Judge holding the transaction as an exchange and not a sale does not seem to suffer, from any infirmity. Furthermore, the question whether the transaction is a sale or an exchange is essentially a question of fact which cannot be interfered with in the revisional jurisdiction of the High Court.

8. For the aforesaid reasons, the revision petition being without any merit is hereby dismissed with no order as to costs. S. A. H. Petition dismissed.