P L D 1988 Lahore 419 (PLP)

This is a plaintiff's second appeal in the pre‑emption suit. Suit was decreed on 28‑6‑1968 subject to payment of Rs.14,764.98. On appeal, this decision was reversed on 12‑2‑1970 by Additional District Judge and the pre‑emption suit was dismissed. 55 kanals, 16 marlas of land, Khasra 992 situate at Mauza Rissar, Tehsil Attock belonged to Ghulam Sarwar etc. By mutation 1068 attested on 24‑4‑1966, this piece of land was sold by them to Karam Elahi at the sale price of Rs.20,

000. Ch. Allah Bakhsh as plaintiff claimed pre‑emption in respect of this sale and sued for enforcement of his rights by filing a suit against the vendee on 24‑4‑1967 in the Court of Administrative Civil Judge, Campbellpur. It was alleged that as a collateral, plaintiff had a better right. Price paid for the land was also disputed and it was averred that land was sold for Rs.5,580 only and payment of inflated price was shown in the mutation to stave off the plaintiff's right of pre‑emption. On being served, Karam Elahi defendant appeared in Court and submitted his defence. It was pleaded that the land in suit was exchanged with Ch. Muzaffar Khan and others in recognition of their superior right of pre‑emption and that it was purchased by him at the sale price of Rs.20,000 which price was fixed in good faith and was actually paid to the erstwhile owners. On this defence, plaint was amended and Ch. Muzaffar Khan and three others to whom the land in suit was given in exchange were impleaded as defendants 2 to 5 in the suit. Substantial defence taken by defendants 2 to 5 was that the land in suit was received by them in exchange for their own land by mutation 1101 dated 15‑5‑1967. It was pleaded that the transfer in their favour was made in recognition of their superior right of pre‑emption suit against them could not proceed. On 14‑12‑1967, as many as six issues covering different facets of the controversy were settled by the trial Judge. In support of the issues, both the parties produced oral evidence as also the copies of Revenue papers reference to which shall be made in the succeeding paragraphs. Oral evidence on the side of the plain tiff 'consists of the testimony of village Patwari and the statement of plaintiff. As against this, defence evidence consists of the statement of Karam Elahi and Ch. Muza‑ffar Khan defendants I and 2, in the suit. On consideration of this evidence, learned trial Judge concluded that "the defendant No.1 had not exchanged the property in dispute with defendants 2 and 5 within the period of limitation. The subsequent transferee, therefore, could not defeat the suit of the plaintiff although they possess superior right of pre‑emption to that of the plaintiff. The exchange made in favour of defendants 2 to 5, therefore, is of no help to the defendants as the exchange was collusive with defendant No.1 and was made for benefit of the original vendee". In regard to issue No.2, it was held that though the plaintiff's right of pre‑emption was superior to the vendee yet it was inferior to the defendants 2 to

5. On issues Nos. 3 and 4, it was held that price of the land in dispute was Rs.14,764.98. On these conclusions, suit was decreed to plaintiff. Decision of the trial Court was assailed before the learned Additional District Judge in two separate appeals by plaintiff‑pre‑emptor claiming reduction in the sale price and the subsequent transferees for dismissal of the pre‑emption suit in its entirety. As stated above, by a common judgment, appeal filed by defendants 2 to 5 was accepted and pre‑emption suit was dismissed principally on the ground that exchange in favour of defendants 2 to 5 was a valid transaction made in recognition of the superior rights of defendants 2 to

5. Against this decision, plaintiff came up in second appeal to this Court. It was admitted to hearing on 10‑2‑1971. Malik Muhammad Jaffar Advocate on behalf of the appellant raised two points. These are‑‑‑ First, transaction of exchange is not proved. Second, if it is held that exchange of properties was made, it was completed after the period of limitation prescribed and could not successfully defeat the plaintiff's pre‑emption suit. Learned counsel has taken me through the evidence, oral as well as documentary, so as to show that the conclusions of learned Judge below suffered from disregard of the record. Sheikh Zamir Hussain Advocate supported the impugned judgment and contended that both the contentions have no merits and also submitted that record clearly supported the findings of learned Additional District Judge. Though the suit was tried on number of issues but, as agreed, only issues I and 5 survive for decision in the second appeal. As observed above, fate of this appeal turns on the decision of issues 1 and 5 only. First question which arises for decision is as to the exchange of properties by defendant No.1 with defendants 2 to

5. By mutation 1068, land in suit was sold to Karam Elahi. Mutation was entered on 10‑2‑1966 and was finally sanctioned on 24‑4‑1966. Copy of mutation is Exh. D,

2. By mutation 1101, Karam Elahi gave land in suit to defendants 2 to 5 and in return received 55 Kanals, 17 Marlas. ‑of land comprised in Khasras 974, 975, 976, 973/1 from them, Exchange of properties was reported to village Patwari on 31‑12‑1966 by Karam Elahi and Muzaffar Khan. Latter is shown to have also acted for the remaining owners. On the basis of the aforenoticed report, exchange‑mutation was entered on 31‑12‑1966. It was placed before the Revenue Officer on 31‑1‑1967. On this date, Karam Elahi defendant No.1, Muzaffar Khan, Muhammad Mumtaz Khan and Haider Zaman defendants 2, 3 and 5 appeared before the Revenue Officer, supported the exchange and transfer of possession 'of the exchanged properties. Order recorded on the mutation sheet on this date shows that Muhammad Mumtaz Khan had supported the transaction on behalf of Muhammad Nawaz Khan his real brother. Though the parties were agreed on the transaction, yet attestation of mutation was postponed to a future date for verification of the entries by the Girdawar. Halqa Girdawar made the necessary verification on 22‑4‑1967 as is evident from the entry in column 14 of the mutation Exh. D‑

3. Finally, mutation was sanctioned on 15‑5‑1967 and the lands were mutated in the names of respective parties as desired by them. Exh.D‑3 shows that though the mutation was sanctioned on 15‑5‑1967, yet Tatimma in respect of Khasra 973 is shown to have been prepared on 4‑7‑1967 by which Khasra 973/1 was separated and delineated on the plan. Allah Bakhsh P.W.2 did not say anything against the exchange. In fact, he expressed his ignorance about the transaction. Karam Elahi defendant No.1 supported the exchange. To the similar effect, is the statement of Ch. Muzaffar Khan D.W.2. In regard to the exchange, testimony of D.Ws. was not subjected to serious cross‑examination by the plaintiff. Defendants 2 to 5 are close relations inter se. Haider Zaman defendant No.5 is real son of Ch. Muzaffar Khan defendant No.2. Muhammad Mumtaz Khan and Muhammad Nawaz Khan defendants 3 and 4 are real nephews of defendant No.

2. It is true that on behalf of defendants 2 to 5, only Muzaffar Khan had reported exchange to the village Patwari and it was on his statement as also that of Karam Elahi that exchange mutation was entered by the village Patwari. It is also true that Muhammad Nawaz Khan had not appeared before the Revenue Officer on 31‑1‑1967 to admit exchange of properties and his brother Muhammad Mumtaz Khan had made statement on his behalf. Malik Muhammad Jaffar learned counsel for the appellant made much capital out of these omissions and argued that transaction of exchange was not complete on 31‑1‑1967. With due deference, I do not agree with his view point. As indicated above, defendants 2 to 5' were close relations. Muzaffar Khan was their elder and all but one i.e. Muhammad Nawaz Khan had appeared before the Revenue Officer A and admitted exchange of their property with Karam Elahi. On behalf of Muhammad Nawaz Khan, his real brother who was a party to the transaction of exchange had made the supporting statement. At the trial, exchange was supported by all the defendants. Till to date,, none retracted from the completed exchange. In this circumstance, I do not attach much importance to the omissions pointed by learned counsel for the appellant. It may be noted that in absence of effective cross‑examination, it can be inferred safely that the plaintiff did not seriously dispute the transaction of exchange. It was not denied by the learned counsel that mutation 1101 remained unaltered uptil today. In default of application of section 54, Transfer of Property Act 1882, transfer of property by mutation of names is a permissible mode in Punjab. In Jangi v. Jhanda and others P L D 1.961 (W.P.) Baghdad‑ul‑Jadid 34, a Division Bench Of The Court ruled that "When a mutation is sanctioned with regard to sale of land, it is either on the basis of an oral sale or sale by a deed, and I am clear in my mind that as far as the sale goes, it shall be deemed to have been completed on the day on which it was effected and not on the date on which mutation in the Revenue records was sanctioned about it. It is true that for purposes of making the period of limitation rule with regard to a suit for pre‑emption, the date of the attestation of the mutation in the Revenue records is taken into consideration by reason of the relevant provision of the Punjab Pre‑emption Act, 1913, 1 which was in force in the Bahawalpur State at the relevant , but I am clear in my mind that the title in the property passes the transaction of sale is completed and is not postponed till the attestation of the mutation in the Revenue records" . With immense respect, the enunciates correct statement of law. On 31‑1‑1967, both the parties had appeared before the Revenue Officer, admitted exchange of the properties as also the transfer of possession. Postponement of the mutation for its attestation to a date after verification did not postpone the date of exchange also. In all respects, transaction was complete on 31‑1‑1967, if not on the entry of mutation on 31‑12‑1966 by the village Patwari. Another circumstance in regard to subsequent preparation of Tatimma. on 4‑7‑1967 relied upon by the learned counsel to support the argument that till this date exchange was not complete' can also not be entertained with success. Parties to the transaction knew about the properties to be exchanged by them and if the Revenue Officials postponed the preparation of a separate Tatimma to a date after the sanctioning of mutation, no fault lay with the parties and they cannot be made to suffer for any act or omission on the part of the Revenue officials. In my opinion, transaction of exchange was complete on 31‑1‑1967. There is no material to suggest that it was an ungenuine transaction and suffered from the vice of collusion. Argument of the learned counsel that possession of the properties did not change even if it was proved was not in itself a weighty circumstance to tell on the genuineness of the transaction of exchange. "Exchange" is defined in section 118 of transfer of Property Act 1882. It is transfer of ownership of one thing for the ownership of another, neither thing or both things being money only. Absence of C transfer of possession would not prevent an exchange from being an exchange. So far as ownership rights were concerned, those have been effectively transferred. In this behalf reference with advantage can be made to Ali Muhammad v . Malik and others P L D 1961 (W.P.) Pesh.

62. It was open to the first vendee to transfer the property to a person enjoying right of pre‑emption equal or superior to the plaintiff and thereby defeat his pre‑emption suit. In the case 1, under consideration, before pre‑emption suit was filed in Court, vendee had exchanged the land in suit with the land belonging to defendants 2 to

5. To this course of action, no legal objection could be raised ' Transfer through exchange was valid and was made within the period of limitation prescribed for the enforcement of pre‑emption claim by defendants 2 to b. There is no real distinction between a donation or exchange on the one hand and resale of property by the original vendee to a subsequent transferee on the other. Reference to Bakhshan and others v. Haji and others P L D 1954 Baghdad‑ uI‑Jadid 48 is in point. in view of the foregoing discussion, I would agree with the learned Judge below, uphold his conclusions and dismiss the appeal directing the parties to bear their own costs. A.A./A‑321/L Appeal dismissed.