P L D 1988 Peshawar 126 (PLP)

2. Facts of the case in brief are that vide registered deed dated 29‑12‑1981 Khuda Bakhsh defendant No. 2 transferred an area of 1 Kanal and 12 Marlas of land situate in village Ratta Kulachi by way of gift in favour of defendant No.1. Qureshi Shah Nawaz brought a pre‑emption suit claiming that the land had in fact been sold by defendant No.2 to defendant No.l and to defeat the rights of the prospective pre‑emptor a fictitious colour of gift was given to the transaction. The suit was contested by the defendants and pleadings of the parties obliged the learned trial Judge to frame the following issues:‑‑ (1) Whether the plaintiff has a cause of actions? (2) Whether the plaintiff is estopped by his own conduct to bring the present suit? (3) Whether the suit is competent in its present form? (4) Whether the suit is within time? (5) Whether the court‑fee is not sufficient? (6) Whether the suit land was gifted to the defendant‑1 by the defendant‑2 in lieu of the services rendered to the defendant‑2? (7) If the transaction turns out to be sale, then what amount was fixed or paid in good faith? (8) What is the market value? (9) Whether the plaintiff has a superior right of pre‑emption? (10) Relief? After recording the evidence of the parties as they wished to adduce the learned trial Judge came to the conclusions that the plaintiff failed to establish through cogent evidence that defendant No.2 had actually sold the land in suit to defendant No.1 and further held the transaction to be a gift and thus not pre‑emptible and accordingly dismissed his suit. Aggrieved by the conclusions of the learned trial Judge Qureshi Shah Nawaz went in appeal in the Court of the learned District Judge, D.I. Khan where too he failed and hence the instant civil revision petition.

3. Arguments of the learned counsel for the parties have been heard and record of the case has been examined.

4. To prove a gift to be a sale the plaintiff has to satisfy the judicial conscience of the Court through cogent and convincing evidence. In this case besides himself the plaintiff has produced one Sher Ali (P.W. 3) who deposed that he heard that the suit land purchased by defendant No.1 for Rs.6,000 but in cross‑examination he admitted that he ;vas not present at the time of the said sale nor any payment was paid in his presence. The next witness produced by the plaintiff was Muhammad Nawaz (P.W.4) who too stated in Court that he had heard that the suit land had been purchased by defendant No.1 from defendant No.2 but in the cross‑examination he also admitted that he was not present, at the time of the transaction nor did he witness any payment in this regard. Shah Nawaz plaintiff while appearing as P.W.2 deposed that he had heard from defendant No.2 that the suit land had been sold by him to defendant No.1 in lieu of a house which he had purchased from defendant No.1. He too has admitted that he was not present at the time of the registration of the deed. From the evidence produced by the plaintiff nowhere it has been established that any consideration changed hands between defendant No.1 and defendant No.2. All the witnesses produced by him have given the evidence in the nature of hearsay and no one has witnessed any consideration changing hands. It is one of the essential ingredients for the sale to be proved that consideration must change hands. As I have observed earlier onus lay heavy on the plaintiff to prove by convincing and cogent evidence to satisfy the judicial conscience of the Court that the transaction shown to be a gift was in fact of sale intended to evade pre‑emption claim. Reliance in this respect maybe placed on Fateh Muhammad and 3 others‑v. Abdul Majeed and another (P L D 1985 Lah. 650). Moreover, in view of the authority reported as Mst. Sikandar Jan and 13 others through his legal heirs v. Abdul Ghani and 11 others (1985 C L C 2582), finding of first appellate Court on a question of fact is final and cannot be interfered with in revision unless some jurisdictional errors C are pointed out or it is established that such finding is the result of ignoring material evidence or is the outcome of misreading of such evidence or is based on extraneous consideration. The learned counsel for the petitioner has miserably failed to point out any jurisdictional error or any irregularity or illegality having been committed by the two Courts in coming to a concurrent finding of fact that the transaction was in fact a gift and not a sale and thus not subject to pre‑emption. Learned counsel for the petitioner, however argued that no issue whether the transaction was sale and not a gift was framed and therefore the plea of the plaintiff that the transaction was in fact a sale and not a gift had not been properly adjudicated upon. I, however, do not agree with the Learned counsel because issues No.6 and No.7 reproduced above fully cover the objection of the learned counsel and I see no substance in the contention of the learned counsel that the matter was not properly adjudicated upon. In this connection even if it is conceded for the sake of arguments that the issue on the point was not happily worded or that no specific issue was framed, it will not help the learned counsel because the issues were framed on the pleadings of the parties and the parties to the suit throughout the trial were fully cognizant of the issues which really arose out of the pleadings of the parties and they had adduced their evidence in support thereof. In such a situation no prejudice has been caused to the petitioner by failure of the Court to frame a proper issue arising, out of the pleadings of the parties. Reliance in this respect may be placed on Mehr Din (represented by his legal heirs v. Dr. Bashir Ahmad Khan and 2 others (1985 S C M R 1). Yet in another authority reported as Mst. Sughra Bibi alias Mehran Bibi v. Ashar Khan and another (1988 S C M R 4) the august Supreme Court held that:‑‑ "It has been observed in the impugned judgment that "the learned trial Court had struck only one issue relating to the plaintiffs' contention that the gifts in dispute were illegal and inoperative but the record shows that the parties had led evidence keeping in view the precise grounds pressed by the plaintiffs to avoid the gifts in question. No prejudice was, therefore caused to the parties due to the framing of an omnibus issue by the learned Civil Judge. In this view of the matter, the contention of the learned counsel for the appellant relating to the framing of the improper issues is of no consequence." In this case as has been observed earlier the very contest between the parties was whether the transaction in question was a gift or sale. While the plaintiff stressed the transaction to be a sale the defendants claimed it to be a gift and thus not pre‑emptible, Both the parties adduced their evidence on this score alone and in these circumstances it cannot be contended that in failing to frame a proper issue by the trial Court, any prejudice was caused to the plaintiff.

5. There is no merit in this civil revision petition which is hereby dismissed with no order as to costs. A.A./628/P Revision dismissed.