1986 PLP 579 (MLD)

Sardar Khan petitioner, filed a suit against Muhammad Inayat, respondent for possession of the land measuring 50 Kanals 4 Marlas, described in the plaint, through exercise of right of pre‑emption on the plea that the land in question comprised in his tenancy. According to averments made in the plaint, the land originally belonged to Mst. Barkat Bibi who entered into .an agreement, dated 19‑12‑1972 with the respondent, for its sale in his favour for a consideration of Rs. 26,500 out of which she received Rs. 20,000 in ‑advance. The remaining sale price was also paid to 'her but instead of executing the sale‑deed, with a' view to defeat the rights of the petitioner, the sale transaction was given the appearance of an exchange and in this behalf a fake exchange deed, dated 2‑3‑1976 was executed between the parties.

2. The respondent contested the suit, denied the sale and pleaded that he obtained the land measuring 114 Kanals 4 Marlas from Mst. Barkat Bibi in lieu of his land measuring 50 Kanals 8 Marlas. It was claimed that as she refused to sell the land, agreement, dated 19‑12‑1972, was not implemented and the sum of Rs. 20,000 refunded by her to the respondent.

3. The pleadings of the parties gave rise to several issues but before me their learned counsel have confined their arguments to the sole point as to, whether the transaction in question was an exchange or a sale. This controversy is reflected by issue No.2. It may be observed that the petitioner's status as a tenant and resultantly his claim as to the superior right of pre‑emption, is not in dispute.

4. In support of his contentions, the petitioner endeavoured to establish the execution of the agreement for sale by production of the petition writer's register and examination of one Nasir Hussain. By this evidence it was proved that an entry showing execution of the agreement existed in the Register. He himself appeared in the witness‑box and also examined Rehmat, Allah Rakhah and Khushi Muhammad. It is in their testimony that the land was actually sold away to the respondent and the exchange was merely a cloak to conceal the real transaction. On the respondent appeared as his own witness. He of the agreement but urged that it stood rescinded by mutual .consent.' He placed reliance on the photostat of the receipt, dated 19‑4‑1973 Exh. D.1 showing refund of Rs. 20,000 to the respondent by Mst. Barkat Bibi. He further deposed that there was no sale and the land in dispute was obtained by him through an exchange and relied upon the deed Exh. P.5.

5. The Assistant Commissioner, Daska who exercised the powers of Collector by his judgment, dated 25‑8‑1981 after proper consideration of the material adduced by the parties, discarded the petitioner's oral evidence and held that he failed to cast any doubt on the genuiness of the exchange transaction, evidenced by a registered deed. The suit was, thus, dismissed.

6. The petitioner challenged this dismissal through an appeal before the learned Additional Commissioner, Gujranwala Division Gujranwala, who maintained that the land given in exchange by the respondent was "chhamb" and amenable to floods. In his opinion, the exchange was inequitable and thus, in fact there was a sale. In view of his these findings, the appeal was accepted and the suit dismissed.

7. The respondent then went in revision. The learned Member, Board of Revenue, disagreed with the appellate authority and allowed the revision. The decision of the Collector was thus, restored. The operative part of the order, dated 1‑2‑1984 passed in revision is as .under:‑ "A transaction of exchange executed through registered deed, where there is recital of the parties has to be taken on its face value unless it were conclusively proved that money in consideration was actually paid. In this case there is no such conclusive evidence. The agreement to sell executed between the vendor and, the vendee produced before the trial Court and relied upon by the Additional Commissioner is, dated 19‑12‑1972 and, as such, has little evidentiary value in regard to transaction of exchange duly executed through a registered deed in 1976." This order is under challenge in this writ petition.

8. I have heard the learned counsel for the parties, and examined the available record. On behalf of the petitioner, his learned counsel has heavily relied upon the agreement aforesaid and emphasised that it was never cancelled. In his submission the exchange was a supurious transaction. He referred to the, judgment of the learned Additional Commissioner and submitted that the view taken by the learned Member, Board of Revenue is erroneous. He also canvassed that there was marked disparity in the value of the land in dispute and of the one given to Mst. Barkat Bibi in exchange, by the respondent. He further drew my attention to the statement of the respondent to contend that he never parted with the possession the land said to have been transferred by him to Mst. Barkat Bibi, under the exchange. In nut shell, his argument, was that the exchange was merely a deception and the land was really purchased by the respondent under the agreement dated 19‑12‑1972.

9. It is thus, to be seen that the agreement for sale is the main plank of the petitioner's arguments. It is noteworthy that under this document, Mst. Barkat Bibi had to transfer the land to the respondent within six months of its execution, either by means of mutation or the sale deed. The agreement is, dated 19‑12‑1972, whereas the exchanger took place on 2‑‑3‑1979. The time lag of more than four years between the execution of the two documents, rendering the specific performance of the agreement as barred by time, lends ample support to the respondent's stand that it stood cancelled and consequently, he received back the 'sum of Rs. 20,000 from the alleged vendor. It is also not without significance that the area of the land mentioned in the agreement and the land transferred by Mst. Barkat Bibi to the respondent by way of exchange is not the same. The argument pegged on the difference in the value of the two tracks of land, does not deserve any serious attention of the Court, for, there is not even an iota of evidence to that effect on the record. The difference in the quality of the land, if any, for which there is no clear cut evidence on the file by itself is not sufficient to doubt the genuineness of the exchange, which the parties choose to enter into between them. In Shah Wali v. Allah Rakha P L D 1982 S C 17, cited by the learned counsel for the petitioner it is laid down:- " .. it is the nature of the consideration paid for the transfer which determines the nature of the transfer itself." Needless to mention that it was the obligation of the petitioner to place on the file the necessary evidence to show that the consideration was the sale price and that a sum of Rs.26,500 was paid as such by the respondent to the vendor: But he has failed to produce any such evidence. The view expressed by the learned Member, Board of Revenue, holding that there is no conclusive evidence showing payment of the sale price, is well based. None of the petitioner's witnesses including the petitioner, claimed to have evidenced the passing on of the said consideration by the respondent to the vendor. Even the learned Additional Commissioner has not recorded any finding in this behalf: His decision is perfunctory and he did not touch upon he reasoning which influenced the judgment of the Collector. The argument of the petitioner's counsel that the possession of the area measuring 50 Kanals 8 Marlas was never surrendered by the respondent to Mst. Barkat Bibi, is, misconceived. In his deposition, he has clearly stated that he held it under the latter on "Patta".

10. It is open to the Court to examine the true nature of the transaction to find out as to whether or not it is different from the one claimed by the plaintiff. But when the transaction is rested on a registered document, executed between the parties thereto, of their free will, very strong evidence is needed to throw away the document and to hold that it is merely a farce, brought into existence to cheat the pre‑emptor. On going through the record, I am clearly of the view that such evidence is missing in this case and it is not possible to ignore the exchange deed. The learned counsel for the respondent has rightly pointed out that the burden of the material brought on the file by the petitioner, is, that the agreement was never cancelled and the transaction in question is in continuation and pursuance of the said agreement. But as observed earlier, this contention has remained un-established. I am, therefore, not persuaded to differ with the learned Member, Board of Revenue.

11. This writ petition is also liable to be‑dismissed on the ground that the impugned order does not suffer from any jurisdictional defect or any other such illegality, justifying its removal through judicial review.

12. For all these reasons, this writ petition is dismissed with costs. H . B. T . Petition dismissed.