P L D 1961 (W (PLP)

Dr. Abdur Rahim for Petitioner. Fazal Mahmud Khan for Respondent No.

1. Date of hearing : 25th April 1961. On the 4th of April 1955, by a registered deed of exchange, Makhna gave 6 kanals 16 marlas of land in village Jara, to Ali Muhammad, Jiwan, Ghulam Qasim and Sher Muhammad, sons ,of Allahdad, and took in return 4 kanals of land from them which was also situated in that village. Attacking this transaction as a sale Malik Sanwal brought a suit for possession by pre‑emption in respect of 6 kanals 14 marlas of land acquired by Ali Muhammad and his three brothers on payment of Rs. 225 at which he valued its price.

2. In defence, it was contended that the transaction was not a sale, but an exchange, and was not pre‑emptible.

3. The trial Judge was of the opinion that in fact an exchange had been effected and he, therefore, dismissed the suit on the 6th of October 1956. The pre‑emptor Malik Sanwal went in appeal before the Senior Sub‑Judge, D. I Khan, who held the transaction to be a sale, and granted a decree for possession by pre‑emption to Malik Sanwal on payment of Rs.

700. That was found to be the market value of the land pre‑empted.

4. Ali Muhammad has come to this Court in revision against the judgment of the Senior Sub‑Judge, and claims that the transac tion being an exchange was exempt from pre‑emption. His contention was that the lower Appellate Court was wrong in holding it to be a sale.

5. Section 4 of the Pre‑emption Act permits a Court to examine a transaction which is one other than sale to determine whether it is in fact a sale or not. If on examination it is found that a transaction has been described to be one other than a sale, but the circumstances of the case clearly indicate it to be a sale, A the Court should declare it to be a sale. But in order to deter mine that a transaction is different from the one described, the circumstances indicating its different nature must be of very strong character.

6. A sale, as defined in section 54 of the Transfer of Property Act, "is a transfer of ownership in exchange for a price paid or promised, or part‑paid and part‑promised". Price has been held to be money only. Exchange, as defined in section 118 of the said Act, is the transfer of "ownership of one thing for the owner ship of another, neither thing or both things being not money only". For a transaction to be a sale, it is necessary that a price in cash must have been paid for the thing sold. There must be ownership in a thing on one side and cash price for it on the other. There is no such evidence in this case. On the other hand, the transaction has all the essentials of an exchange, as defined in section 118 of the Transfer of Property Act. Ownership in four kanals of land has been transferred in return for ownership in 6 kanals 14 marlas. There is no element of price in cash in it. Both the pieces are shah nehri in quality. There is difference in area no doubt, but that alone would not convert an exchange into a sale. It is possible that the piece of four kanals, in the eye of the person acquiring it, is more valuable, for several reasons, than the piece of 6 kanals 14 marlas which he surrenders.

7. In this case, this area was first sold to the same defend ants. Ali Muhammad and his three brothers and that sale was pre‑empted by Makhna and he obtained it under a decree of the Court. Thereafter Makhna was approached by Ali Muhammad and his three brothers and its exchange was arranged between him and Ali Muhammad and his brothers. From this it appears that Ali Muhammad and his brothers were anxious to take this land, and in order to avoid any pre‑emption suit they resorted to the device of exchange. There was nothing illegal in the resort o to this device which the law permits. It is now well settled that pre‑emptions can be defeated by legitimate devices like exchanges and gifts. All that is necessary is that the device must possess all the essentials of the exchanges and gifts. If the law exempts AI' pre‑emption it is open to a person to resort to exchange from exchange in order to save his land from preemption. Law Courts would permit such device to be pursued, if the transaction is an San, exchange as defined in section 118 of the Transfer of Property Act.

8. It has been stated that the parties have not transferred possession of the exchanged pieces. That would not prevent an exchange from being an exchange, and would not convert an exchange into a sale. Each party is now, after the deed of the 4th of April 1955, free to recover possession from the other.

9. Court should hesitate, in the absence of very strong evidence to the contrary, from rejecting ‑documents which have been executed between the parties with free consent and under which they have parted with their rights in their properties. Written documents which appear to have been executed without tinge of fraud and complusion are entitled to great respect, in order to confer security on human dealings. If on the mere allegations of persons interested in destroying a transaction, the transaction is destroyed, faith of people in the sanctity of written agreements will be shaken, and there will be no assurance to the parties to the agreement that it will survive baseless attacks and will remain effective. It will be tyranny to the people if they are made to live in a state of affairs, under which solemn human deal ings are deprived of security of survival.

10. The exchange has been effected through a registered deed and the registration has been followed by mutations. Each of the parties to the transaction has divested himself of ownership in the land surrendered by it to the other, and each is in law entitled to recover what he has acquired. There is no evidence that any price was paid or promised for the land transferred. None of the marginal witnesses to the exchange deed has been brought into the witness‑box to say that the transaction was in fact other than what it purports to be. There is nothing except the mere allega tion of the pre‑emptor and his witnesses that it is a sale. If on such evidence such solemn transactions are destroyed and exchanges are converted into sales, people will hesitate to enter into transactions at all, in the fear that they will be treated different from what they are intended by them. Law Courts should encourage faith in the transactions into which people entered and which bear all the signs of their character. Such transactions should be destroyed only when there is very strong evidence indi cating that they are not what they seem to be. No such evidence is available in this case. The transaction had all the essentials of an exchange as defined 1n law and none of a sale. Without sufficient evidence exchange has been converted into a sale by the lower Appellate Court. This revision petition is accept ed and the order of the lower Appellate Court is set aside. The respondents will bear the petitioner's costs. K. M. A. Petition accepted.