1986 PLP 2367 (CLC)

(2) Whether the transaction in dispute is a sale? O.P.P. (3) Whether the suit land is exempt from law of pre-emption on account of alleged exchange? O.P.D. (4) Whether the plaintiff lacks cause of action? O.P.D. (5) Whether the plaintiff has superior right of pre-emption against the defendant? O.P.P. (6) Whether Rs.2,000 was actually paid as sale price? (7) What was the market value of the suit land at the time of sale? O.P.P (8) Whether the defendant effected any valid improvements over the suit land and entitled to compensation and if so to what extent? O.P.D.. (9) Relief. The learned trial Court decided issue No.1 in favour of the pre-emptor/ respondent. Issues Nos.2, 3 and 4 were decided against the pre-emptor and it was held that the transaction was an exchange and not a sale. Issue No. 5 was decided in favour of the pre-emptor/ respondent. On issues Nos.6 and 7, the learned trial Court found that Rs.2,000 was the market value of the suit land. Issue No.3 was decided against the petitioner. In view of its finding on issue No.2, the Court dismissed the suit on 27-9-1981. Feeling aggrieved Umar Draz Khan filed an appeal before the learned District Judge, Leiah which was accepted on 22-9-1982. The finding of the learned trial Court on Issue No.2 was reversed and the transaction to dispute held to be sale and as such pre-emptable. On issue No.6, the learned District Judge held that the same should have been framed in the following form: "Whether Rs.25,000 were paid as sale price?" O.P.D. Consequently, the case was remanded for fresh decision, to the learned trial Court with the direction to accord opportunity to both the parties to lead evidence on issues Nos.6 and 7 and then dispose of the suit according to the law in the observations of the appellate Court on issues Nos. 2 and

3. Hence this revision.

3. Before me, the finding on issues Nos. 2 and 6 have been challenged by the learned counsel for the petitioner who' has contended that the findings of the learned trial Court that the transaction was exchange and not a sale has been reversed by the learned District Judge without legal justification inasmuch as, there is nothing on the record to indicate that the transaction in fact was a sale and not an exchange. Further more, the transaction took place on 9-5-1978 through a registered sale-deed which shows that Muhammad Nawaz was also given equal land in exchange and that Muhammad Nawaz has further sold the land taken by him from the petitioner to one Muhammad Akram, who as admitted by P.W.3 and P.W.4 was in possession of the same.

4. After hearing the learned counsel for the petitioner and going . through the material available before me I find that issue No.2 'whether the transaction was in fact a sale' is a pure question of fact. The learned District Judge has applied his mind to this question; has discussed the evidence and has given cogent and sound reasons in support of his conclusion that the disputed transaction was in fact a sale and not an exchange. The learned counsel for the petitioner has not been able to point out any material misreading by the learned appellate Court and as such I am not inclined to interfere with this finding of fact. As for the observations of the learned District Judge on issue No.6 that also appears to be correct to my mind, the case has been rightly remanded to the trial Court for fresh decision in the light of the observations made by the learned appellate Court. For what has been stated above, it is not a fit case for interference under section 115, C.P.C. Dismissed in limine. H . B . T . Revision declined.