2006 PLP 1619 (SCMR)

MUHAMMAD NAWAZ ABBASI, J.

This direct appeal has been preferred against the judgment, dated 4-3-2002 passed by a learned Single Judge in Chamber in the Lahore High Court, Lahore, in a civil revision arising out of a suit for possession through pre-emption.

2. The relevant facts in small compass are that Faizullah Khan exchanged the land measuring 100 Kanals and 12 Marlas situated in Chak No.569-GB, Tehsil Jaranwala, District Faisalabad, with the land in Chak No.587-GB also situated in Tehsil Jaranwala, owned by the appellant vide Mutation No.1347, dated 27-5-1993. The respondent claiming superior right of pre-emption, filed a suit for pre-emption with the assertion that transaction was given the colour of exchange to defeat his superior right of pre-emption on the basis of ownership of adjacent land and co-sharer in joint Khata as well as common right of passage and irrigation. The pre-emptor pleaded in the suit that the value of the land transferred in exchange was almost double to the price of the suit-land and the land given to the vendor in exchange was further sold by him to Abdul Waheed Khan, his son-in-law, for a consideration of Rs. six lac but in the mutation, the transaction was shown as exchange to defeat his right of pre-emption. The respondent thus, claiming the performance of Talb-e-Muwathibat and Talb-i-Ishhad in presence of witnesses in accordance with provision of section 13 of Punjab Pre-emption Act, 1991, sought a decree for pre-emption. The main contest of appellant (vendee) in the written statement was that the transaction being an exchange and not a sale was not pre-emptible and the suit for pre-emption was not maintainable. The vendor also asserted that pre-emptor was estopped by his conduct to bring the suit and having not been able to fulfil requirements of Talb-i-Muwathibat and Talb-i-Ishhad in accordance with law, could not succeed in the suit. The learned trial Judge decided the pivotal issue relating to the nature of transaction whether it was sale or exchange in favour of the vendee and dismissed the suit with the finding that transaction was exchange and further performance of Talbs was also not proved. The appeal filed by the respondent (pre-emptor) was dismissed by a learned Additional District Judge, Jaranwala vide judgment, dated 3-5-2000 but respondent succeeded in civil revision filed by him in the High Court under section 115, C.P.C. and a learned Single Judge, while reversing the concurrent finding of the two Courts on the above issues, decreed the suit vide impugned judgment.

3. The learned counsel for the appellant in support of this petition, has contended that the nature of transaction whether it was sale or exchange was a pure question of fact and concurrent finding of two Courts on the above question, has been reversed by the High Court, through appraisal of evidence in civil revision without pointing out any defect of misreading or non-reading of evidence, requiring to be cured in revisional jurisdiction. It was argued by the learned counsel that the High Court while confining the matter to the extent of issue relating to the nature of transaction, decreed the suit in civil revision, without touching the concurrent finding on the issues relating to the superior right of pre-emption, performance of Talbs for exercise of such right, estoppel and waiver. Learned counsel for the respondent, on the other hand, has contended that the main contest between the parties was on the issue whether the transaction was sale or exchange and remaining issues being of less importance, were not agitated on behalf of appellant, therefore, it would be deemed that performance of Talbs and exercise of right of pre-emption in accordance with law, was conceded and thus, the reversal of finding by the High Court on all the issues, was not objectionable.

4. The question whether the transaction was sale or exchange, being a question of fact, was to be necessarily decided in the light of evidence of the parties and the finding of the Court of first instance as well as Appellate Court on this issue was reversed by the High Court in civil revision with the observation that transaction of sale was taken or treated as exchange to defeat the right of pre-emption. We having perused the record with the assistance of learned counsel for the parties but have not been able to find out any legal or factual infirmity in the concurrent findings of two Courts on the question of fact, calling for interference by the High Court in its revisional jurisdiction and mere fact that another view of the matter was possible on appraisal of evidence, would not be a valid reason to disturb the concurrent findings of fact in civil revision. Be that as it may, we have noticed that the learned Judge in the High Court after reversing the finding on the issue relating to the nature of transaction, without pointing out any misreading or non-reading of evidence on the rest of the .issues relating to the performance of Talbs to exercise the right of pre-emption, estoppel and waiver, set aside the judgment of the Appellate Court with the observation in general terms that the conclusion of two Courts regarding non-performance of Talb-e-Muwathibat and Talb-e-Ishhad was based on misreading of the evidence. We find force in the contention of the learned counsel that without reversing the concurrent finding of the two Courts on each issue, the suit could not be decreed by the High Court merely on the basis of observation that transaction was sale and was not an exchange. The pre-emptor cannot succeed without proving the performance of Talbs in accordance with law and right of pre-emption can also be defeated on the ground of estoppel and waiver. Learned counsel for the respondent has not been able to satisfy us that in the present case, the finding of the High Court on the pivotal issue was based on sound reasons and without reversing the finding on the issue relating to the estoppel and waiver, the suit could be decreed.

5. In the light of foregoing discussion, this appeal is allowed and case is remanded to the High Court for decision afresh of the civil revision on all issues in accordance with law. There will be no order as to costs. M.H./A-54/SC???????????????????????????????????????????????????????????????????????? Case remanded.