1977 PLP 197 (SCMR)

MUHAMMAD YAQUB ALI, C. J.‑On 12th February, 1953, Syed Mujtaba Hassan Shah, respondent No. 5, transferred to Muhammad Hassan Shah Muhammad Asad, Muhammad Qaiswar Shah and Muhammad Raza Shah, respondents 1 to 4, land measuring 452 kanals in village Munganwala, Distt. Multan, ostensibly in exchange for another piece of land measuring 216 kanals and 6 marlas situated in village Banglewala. It appears that simultaneously with the transaction of `exchange' an agreement was arrived at between respondents 1 to 5 and Faiz Bakhsh etc. for sale of the Banglewala land to the latter for Rs. 35,

000. Both the instruments of transfer were executed and presented for registration together and in this manner, respondent No. 5 in fact, received Rs. 35,000 for the Munganwala land given by him to respondents 1 to

4. He did not come to own or possess, for a moment, the Banglewala land. Syed Shahbaz Hassan appellant, who is the nephew of Syed Mujtaba Hassan Shah, thereupon, filed a suit for pre‑empting the transfer of Mungan wala land on the ground that the ostensible exchange was, in reality, a sale and as an heir of the vendor, he had a preferential right to buy the land. The Additional District Judge Multan, who tried the suit, dismissed it on the find ing that on the evidence produced by the plaintiff, he was unable to hold that the plaintiff had discharged the onus to prove that the transfer by respondent No. 5 in favour of respondents 1 to 4 was, by way of a `sale' and pre‑emptible as such. On an appeal to the High Court, preferred by Syed Shahbaz Hassan, a Division Bench, on examination of the evidence led by the parties concluded that "at best the plaintiff had raised some doubts here and there about the real nature of the transactions in dispute. However, in law mere suspicions cannot be a substitute for the proof in the case and we cannot base our decision on mere conjunctures". The appeal was, on these findings, dismissed. Leave to appeal was granted as the suit was filed in 1956 before the Laws (Continuance in Force) Order had come into effect and under the abrogated Constitution of 1956, the plaintiff had right of appeal as value of the subject‑matter, in suit and on appeal, was over Rs. 15,

000. The main issue tried in the suit was whether the Munganwala land was, in fact, sold by respondent No. 5 to respondents 1 to 4 for a sum of Rs. 35,000 but it was given the colour of an exchange to ward off the plaintiff's right of pre‑emption. Leaving aside the oral evidence led by the parties to which we will presently refer, there was, in our opinion, strong circumstantial evidence on the record which shifted the onus of this issue to respondents 1 to

4. As mentioned earlier, the exchange deed and the sale deed of the land taken by respondent No. 5, in exchange in favour of Faiz Bakhsh and others were executed and presented to the Sub‑Registrar at Multan, simultaneously. The two instruments were registered at the same time. The picture which emerges out is that respondent No. 5 acknowledged before the Sub‑Registrar that he had executed the exchange deed in favour of respondents 1 to 4 and the sale deed, in favour of Faiz Bakhsh and others, and, in turn, he received Rs. 35,

000. In this manner, respondent No. 5 did not come to own or possess the land which was ostensibly given to him, in exchange, by respondents 1 to

4. Against this background it did not require much imagination to visualise that the so‑called exchange and the sale in favour of Faiz Bakhsh and others were parts of the same transaction. In pursuance to it the land belonging to respondents 1 to 4 was transferred to Faiz Bakhsh and others for Rs. 35,

000. This amount was paid by Faiz Bakhsh and others to respondent No. 5 who had transferred his land measuring 452 kanals in village Manganwala, to respondents 1 to

4. This inference receives further support from the fact that respondents 1 to 4 sold to Faiz Bakhsh and others the remaining 12 kanals of land owned by them in village Banglewala for Rs. 2,

500. In a civil suit onus to prove an issue may change sides in the light of the evidence led by the party on which onus is initially placed. In the present case, as soon as the facts, mentioned above, were established, the onus to prove issue No. 1 was shifted to respondents 1 to

4. It was for them to make out that the exchange of Manganwala land, in their favour, was in no B mannor connected with the sale, in favour of Faiz Bakhsh and others, of the land given by them to respondent No.

5. No such evidence was led by them. Nor does any circumstance appear on the record in indicate that respondent No. 5 had, before entering into the agreement of exchange with respondents 1 to 4, entered into an agreements with Faiz Bakhsh and others to sell the Banglewala land to them. On the contrary, the sale of remaining 12 kanals of land, owned by respondents 1 to 4, to Faiz Bakhsh etc. on the same day and at the same sitting, indicated strongly that they were party also to the sale of 216 kanals of Banglewala land, by respondent No. 5, the said Faiz Bakhsh etc. With respect, we must say that the approach made by the learned Judge in the High Court is not correct. What is described by them, as 'doubts raised in their mind' about the real nature of the `exchange' was sufficient, at least, to shift the onus of issue No. 1 to respondents 1 to 4 and it was then for them to prove that the exchange was a genuine transaction and not a, mere device to defeat the right of pre‑emption vested in the appellant by law. As will be seen, respondents 1 to 4 totally failed to discharge this onus. The evidence led by the respondents 1 to 4 is recapitulated in the judg ment of the High Court in paragraph 9 at pages 28 and 29 of the paper book. It is stated that Murtaza Hassan, D. W. 6, had proved that on the 3rd February, 1953, Mujtaba Hassan Shah had purchased from him the stamp of the value of Rs. 556‑4‑0 to execute sale deed in favour of Faiz Bakhsh and others. On the same day, Muhammad Hassan Shah, respondent No. 1, purchased the stamp of the value of Rs. 556‑4‑0 for the deed of exchange between respondents 1 to 4 and respondent No. 5 D. W. 9, Muhammad Bakhsh, is one of the vendees under the sale deed, P. .W. 6/1. He deposed that respondent No. 5 had sold to them the land on Chah Chattaywala and Chah Abid Hassanwala for Rs. 35,000 and that the sale price was paid in cash before the Sub‑Registrar. The sale was subsequently successfully pre empted by Nasir Muhammad Shah, father of the plaintiff. In the cross-examination he stated that the land, sold by respondent No. 5, was obtained by him from respondents 1 to 4 in exchange. The learned Judges in the High Court were not impressed by the statement of the witness and remaked that he had prevaricated in replying to question asked in the cross -examination. Akbar Shah, P. W. 10, deposed that a suit for possession of the land was filed by the father of the plaintiff in respect of the land sold by respondent No. 5 to Faiz Bakhsh and others. He was a nearer relative of respondent No. 5 and had preferential rights of pre‑emption. Sahib Yar, D. W. 11 stated that respondent No. 5 and Khadim Hussain, Lambardar, had approached him with a request that the former wanted to sell his land on Chah Shadoowala and Chah Abid Hassan‑wala (in village Munganwala), but he expressed his inability to purchase the land. Thereupon respondent No. 5 said that he would contact respondents Nos. 1 to 4 to sell the land to them but they replied that they had no money to purchase the land and that even if they purchase it, his relatives will pre‑empt the sale. On this respondent No. 5 offered to give his land in exchange to respondents 1 to 4 as it will be easier to sell the land. Accordingly the parties agreed upon the purchase and sale of the land between them. With reference to the answers given by him in the cross -examination and in view of certain admissions made by the witness, the learned Judges concluded that he had inimically deposed towards the plaintiff and interested in the defendants. The next witness was Asad Shah, respon dent No.

2. His statement was similar to that of D. W.

11. He denied that the land at Chah Shadoowala and Chah Abid Hassanwala was sold to them by respondent No.

5. The rest of the evidence has no bearing on issue No.

1. The learned Judges have, therefore, not referred to it in their judgment. The above resume of the evidence led by the defendants, on proper analy sis, supports the plaintiff's case that the so‑called exchange of land between respondent No. 5 and respondents 1 to 4 was, in fact, a device to defeat the superior right of pre‑emption of the appellant. The statement made by Sahib Yar, D. W. 11. is quite explicit on this point. It is, therefore, difficult to appreciate the; view expressed by the learned Judges in the High Court that, at best, the evidence led by the plaintiff only raised a doubt about the real nature of the transfer by respondent No. 5 of the land on Chah Shadoo wala and Chah Abid Hassanwala to respondents 1 to

4. The fact that respondent No. 5 had contacted respondents I to 4 for sale of his land where upon the latter suggested to enter into an exchange to ward off the future pre emptors, did not leave any doubt at all that the consideration for the sale was provided by respondents 1 to 4 by sale of their Banglewala land to Faiz Bakhsh and others. The two transactions were, indeed, complimentary to D each other. In the light of the above discussion we hold that the transfer of 452 kanals of land by respondent No. 5 to respondents 1 to 4 ostensibly in exchange for 216 kanals of land in village Banglewala was a sale for a sum of Rs. 35,000). This amount was paid to respondent No. 5 by Faiz Bakhsh and others on behalf of respondents 1 to 4 to whom they sold 216 kanals of their land in village Banglewala through the agency of respondent No.

5. The two transactions were, however, camouflaged as independent of each other in order to defeat the plaintiff s right of pre‑emption. On this finding we set aside the judgments anal decrees passed by the Courts below, allow the appeal and decree the plaintiff s suit foe possession of the land measuring 452 kanuls on Chah Shadoowala and Chah Abid Hassanwala in village Munganwala, Distt. Multan, against respondents 1‑4 on payment of Rs. 35,

000. Three months' time is allowed to deposit the amount. In default, the suit shall stand dismissed with costs throughout, otherwise the parties will bear their own costs. ANWARUL HAQ, J.‑ I agree. MUHAMMAD HALEEM, J.‑I agree. Appeal allowed.