1990 PLP 825 (MLD)

Mirza Manzoor Ahmad for Respondent. Date of hearing: 18th October, 1989. The respondents suit for possession of land through pre‑emption was dismissed by the learned trial Court through judgment and decree date 17‑7‑1985 after holding that the transaction in question was not a sale but was a gift. The respondent assailed the judgment and decree of the learned trial Court in appeal before the learned lower appellate Court which was accepted through' the impugned judgment and decree dated 27‑4‑1988: The suit of the respondent has been decreed on the ground that he was collateral of the vendor and that the transaction in question was in fact a sale which was given the shape of gift in order to avoid suit to pre‑empt the same.

2. Learned counsel for the petitioner argued that no decree according to the pronouncement of Supreme Court in Sardar Ali's case on the ground of collateral ship could be passed in favour of the plaintiff after 31‑7‑1986 therefore, the impugned judgment and decree passed by the learned lower appellate Court on the said basis on 27‑4‑1988 is nullity in the eye of law. There is no cavil with proposition of law which was also candidly conceded by the learned counsel for the respondent.

3. Learned counsel for respondent further argued that in addition to ground of collateralship the respondent also claimed right of pre‑emption on the ground of co‑sharership in khata.

4. I have examined the plaint certified copy of which has been appended with this revision petition and find that such a plea was raised. Learned lower appellate Court has not recorded any findings qua the said plea obviously for the reason that right on the basis of collateralship being superior to that of co sharership, it might not have been found necessary to record findings on the said plea. The respondent when appeared as P.W.1 in his examination‑in‑chief stated that he was collateral of the vendor as also co‑sharer in khata. The learned lower appellate Court having failed to decide this question therefore, the case has to be remanded to the learned lower appellate Court for disposal of appeal after recording findings on the said plea.

5. Learned counsel for petitioner argued that the findings of the learned lower appellate Court that the transaction in question was a sale is based on misapplication of law as also mis‑reading of the record. He argued that since land was gifted in lieu of services rendered by the donee in getting the land adjusted in the name of the vendor therefore, it was a transaction without consideration in the form of money therefore, the same could not have been held to be a sale. He relied upon judgments reported: as Ghulam Muhammad v. Tek Chand and others (A I R 1921 Lah. 82), Wazir Ahmad v. Mt. Zubaida Khatun and another (A I R 1920 Oudh. 186) and Talib Ali v. Kaniz Fatima Begum and another (A I R 1927 Oudh. 204). He also called my attention to statements of P.W.1, P.W.2 and P.W.3 and argued that they are inconsistent regarding alleged payment of Rs.2,000 the consideration under the transaction. P.W.2 stated that Rs.2,000 was paid before the Tehsildar to the vendor/donor whereas P.W.3 who also claimed to be present before the Tehsildar at the time of the registration of deed of gift/sale‑deed stated that the payment was not made in his presence. This witness also stated that the donor/vendor stated before the Sub‑Registrar that he had gifted the property.

6. The question whether the transaction is a sale or not is to be decided by the Court keeping in view the circumstances of each case. The parties to the transaction i.e. alleged donor and alleged donee are admittedly not related to each other. The alleged donor had sons which fact was also not disputed by the learned counsel for the petitioner. Prior to the execution of this document the alleged donor had executed a power of attorney in favour of the alleged donee authorising him to get the land adjusted in his name fie was also authorised to sell one half of the land after it was adjusted against the claims of the donor mentioned therein. The pre‑emptor who is neither party to such a transaction nor he is supposed to be present therefore, it was rightly held by the learned lower appellate Court that he could not bring evidence as to what happened at the time of execution of the deed. Considering the above noted facts and the other attendant circumstances, the learned lower appellate Court has recorded finding of fact that the transaction in fact was a sale and not a gift and declared the price of the land at Rs.8,000 in lieu of which the same was to be pre‑empted. After considering the arguments of both the learned counsel for the parties and material placed on the record I Grid no reason to interfere in these findings of facts. The finding on issue No.4 regarding nature of transaction recorded by learned lower appellate Court is hereby upheld .

7. For the foregoing reasons, this revision petition is accepted. The case is remanded to the learned lower appellate Court for disposal of the appeal in accordance with law after recording finding with regard to plea of the respondent that he was co‑sharer in khata. 1t is however, clarified that if any application is made by either of the parties, for amendment of pleadings or for recording additional evidence, the learned lower appellate Court shall dispose of the same on merits in accordance with law. The parties are left to bear their own costs. H.B.T./M‑1845/1 Revision accepted.