1985 PLP 370 (MLD)

This second appeal is directed against judgment and decree, dated the 25th of October, 1976, delivered by the learned District Judge, Sargodha.

2. Briefly stated, the facts are that the respondent purchased 111 Kanals and. 2 Marlas of, agricultural land situated in village Rajar, Tehsil Khushab, District Sargodha (now District Khushab) through an oral sale, mutation of which was sanctioned on 28-1-1964 under No.

801. Muhammad Hayat and Ata . Muhammad instituted two suits for pre-empting the aforementioned sale of land. Both these suits were decreed by the learned Civil Judge, Khushab on 27th of July, 1976. Under the decree 63 Kanals and 8 Marlas of land was given to Muhammad Hayat whilst the remaining 47 Kanals and 14 Marlas of land: was given to Ata Muhammad.

3. Muhammad Hayat allegedly sold his aforementioned share of 63 Kanals and 8 Marlas to Shah Wali, respondent, for a consideration of Rs.4,000 but described the transaction as one of exchange in order to forestall pre-emption. The aforementioned transaction between Muhammad Hayat and Shah Wali was effected 'through a decree, dated the 3rd of March, 1970, passed by the Civil Judge, Jauharabad in Civil Suit No. 64 of 1970.

4. Ata Muhammad, the predecessor-in-interest of the present appellants, instituted a suit, in the Court of Hafiz Muhammad Akbar Chughtai, Civil Judge IIIrd Class, Jauharabad, on 23rd of November, 1970, for possession of the disputed land measuring 63 Kanals and 8 Marlas through pre-emption. He claimed his superior right of pre-emption as a collateral of the vendor Muhammad Hayat and as a co-sharer in the disputed Khata.

5. This suit was resisted by the respondent, Shah Wall, who asserted that the transaction in question was an exchange and not a sale and thus not pre-emptible. The respondent disputed the value of the suit for the purposes of court-fee and jurisdiction and the superior right of pre-emption of the plaintiff and also objected that the suit property has not been properly described in the plaint.

6. On the divergent pleadings of the parties six issues were framed. Later issue No. 7 was framed as regards the report of the Local Commissioner who was appointed to determine the market value of the disputed land and also of the land with which it was exchanged. Issue No.8 was that of relief. The learned trial Court by its judgment, dated 14-12-1972 found issues Nos. 1 and 2 in favour of the plaintiff, issue No. 3 against him and on issues Nos. 4 to 7 no finding was recorded in view of the finding on issue No.

3. As a result the suit of the plaintiff was dismissed with costs.

7. The plaintiff, Ata Muhammad instituted an appeal in the Court of learned District Judge, Sargodha. During the pendency of the appeal he died and the present appellants succeeded him.

8. The learned District Judge vide his judgment, dated the 25th of October, 1976, upheld the finding of the learned trial Court on issue No. 3 and found that the transaction was one of exchange and not of sale. He in consequence dismissed the appeal with costs.

9. The appellants feeling aggrieved of this judgment of the lower appellate Court have comb up to this Court in the present appeal.

10. The learned counsel for the appellants contended that the judgment of the lower appellate Court is bad in law as it does not deal with the issues independently. He relied on Bashir Ullah v. Mst. Sardar Begum reported as P L D 1954 Lah. 614 in support of his contention.

11. The only other contention of the learned counsel for the appellants was that the judgment of the lower appellate Court is not based on independent appreciation of the evidence.

12. On the contrary the learned counsel for the respondent submitted that the judgment of the learned District Judge fulfils the necessary requirements of law and cannot be termed as bad in law. He submitted that paras. 4 and 5 of the impugned judgment give the detailed arguments advanced by the parties and thereafter the Court agreed with the contentions of the respondent and dismissed the appeal.

13. The learned counsel for the respondent further submitted that the findings on the material issue No. 3 by both the Courts below are concurrent and thus not open to question in a second appeal. He in support of his above contention referred to Pir Walayat Shah v. Muhammad Shaft and another reported as 1968 S C M R 1304; Yahya Gul and another v. Yahya Jan and another reported as P L D 1968 Pesh. 122 and Ali Muhammad v. Malik Sanwal and others reported as P L D 1961 (W.P..) Pesh. 62.

14. Lastly the learned counsel for the respondent contended that in any case the judgment of the trial Court is wholly unexceptionable as it has dealt with all aspects of the case and is in no manner lacunic.

15. In reply the learned counsel for the appellants contended that the report of the Local Commissioner has not at all been considered by any of the Courts below. He urged that there being no objection to the report it merited to be accepted as such. It was, however, not disputed by the learned counsel for the appellant when pointed out by the learned counsel for the respondent that no controversy in the above connection was raised before the learned District Judge.

16. The learned counsel for the respondent also pointed out that it is incorrect to state that no objection was raised to the Local Commis sioner's report. He submitted that in fact issue No. 7 itself was framed on the basis of the objection of the respondent.

17. Having given consideration to the controversy I am of the view that the contentions raised on behalf of the appellants have no force. The learned District Judge has delivered a detailed judgment in the appeal before him. In paras. 4 and 5 of the impugned judgment the respective contentions of the parties have been elaborately incorporated. While incorporating the contentions of the parties the relevant facts on record have also been taken notice of and in fact succinctively referred to in juxta position with the arguments. When the arguments of the parties have been given in such a detail with reference to the material A available on record and then a finding recorded agreeing with one set of arguments it cannot be said that no independent finding has been recorded by the Court seized of the matter.

18. Now not only the lower appellate Court but the trial Court has also found as a matter of fact that the transaction in dispute was not a sale but an exchange. The discussion of the trial Court on this material issue (issue No. 3) clearly shows that the learned .trial Court had also given full application of mind to the matter in dispute and the evidence on record had been duly examined by it.

19. The learned trial Court has also found that the only witness of the plaintiff (the predecessor-in-interest of the present appellants) was a liar. Now this was within the discretion of the trial Court to believe or disbelieve any evidence. 20. 1 had asked the learned counsel for the appellants that even if it be assumed that the lower appellate Court's judgment has not dealt with the issues independently what fault .lies with the judgment of the trial Court so that the same could be examined. The learned counsel of the appellants has not been able to point out any single lacuna in the said judgment. He has also not been able to show even any misappreciation of the evidence by the trial Court what to say of non-reading of the record.

21. In order to satisfy myself I have carefully examined the evidence on record. I find that the evidence led by the plaintiff in support of issue No. 3 is highly discrepant. It has been correctly pointed' out by the trial Court that the testimony of Sher Muhammad P.W.1, is not worthy of credence as he has not even been able to show who received the consideration .of sale. As regards the testimony of the plaintiff himself the same position obtains and about the sale price being Rs.4,000 his statement is based on hearsay. Contrarily the evidence of the defendant-respondent effectually controverts the assertions of the plaintiff and establishes beyond any shadow of doubt the transaction to be of one of exchange only. It may pertinently be pointed out here that even if the defendant had not produced any evidence the onus of proving the transaction to be one of sale being on the plaintiff he had failed to discharge the same.

22. There can be no dispute about the well-settled principle' that concurrent findings on facts cannot be interfered with in second appeal. It has also been held in Pir Walayat Shah v. Muhammad Shafi and L another reported as 1968 S C M R 1304 that whether ' a transaction is a sale or 'an exchange is a question of fact and cannot be disturbed in a second appeal. This would be more so where the finding of the trial Court is otherwise also unexceptionable.

23. Adverting now to the objection raised on behalf of the appellants that the report of the Local Commissioner has not been considered by any of the Courts below, I suffice by observing that the learned trial Court was justified in not dealing with issue No. 7 in view of its finding on issue No.

3. Having come to the conclusion that the transaction in dispute was an exchange and not a sale there was no occasion to refer to 'the report of the Local Commissioner to whom the matter was referred only to determine the market value of the land in dispute in E the suit and the one with which it was exchanged. The reference made by the learned counsel for the appellants to the last portion of the report of the Local Commissioner wherein it has been stated that the transaction in question was not an exchange but a sale is wholly inapt. The said statement in the report of the Local Commissioner is beyond the scope of reference made to him. I have found from the record that the application of the predecessor-in-interest of the appellants for appointment of the Local Commissioner was filed to determine the market value of the two parcels of land. In the reply to that application the respondent had agreed to the appointment of Local Commissioner only for the purpose of determination of market value. The order of the trial Court, dated 15-4-1971 whereby the Local Commissioner was appointed is also to the effect that he is to determine the market value of the two parcels of land separately. The report of the Local Commissioner in-so far as it contains his opinion that the transaction was a sale and not an exchange is wholly beyond his jurisdiction and as such the report has rightly been ignored by the Courts below. It may also be observed that in the report there is a reference to the statement of the parties on the basis of which the market value has been given but those statements are not annexed with the report and were not part of the record. In the above context of the matter it would be obvious that even if the report had. been taken into consideration it would not have affected the findings of the Courts below on the material issue, viz. issue No. 3.

24. In view of the foregoing discussion I find no merit in this appeal which is accordingly dismissed with costs. H . B . T .