Find a Lawyer

Civil Revision No. 249 of 1949, decided on 18th January 1951, from the order and decree of Mian Shakirullah Jan, Senior Sub‑Judge, Peshawar, dated 12th December 1949.

--------, S. 4‑Exchange ‑Pre‑emptor should prove that exchange in fact is sale. It is true that it is very difficult for a person, who attacks‑a certain transaction, to prove that it is something else than what it purports to be, because the parties to the deed take all possible precautions to hide their true intentions, but in spite of that the plaintiff' must bring some circumstances on the record from which it can reasonably be inferred that the transaction was what the plaintiff claims 'it to be.

----- S. 27‑Price of land‑Five‑yearly‑average of land may be 'extremely misleading in certain cases.

There can be no doubt that five‑yearly‑average is fan important piece of evidence in preemption cases but in certain cases it can be extremely misleading, and that in this particular case it certainly is misleading is proved by the fact that thirteen days later the land which according to the five‑yearly‑average was worth Rs. 182, and which according to the deed in question was worth Rs. 400 only was as a matter of fact sold for Rs. 1,000 only.

Khudia Bakhsh and Fateh Muhammad Khan for petitioners.

Abdul Latif Khan, for Respondents.

Hukmat Khan and Ajab Khan, sons of Atta Muhammad, and Muhammad Shah son of Habib. Shah belong to Akbarpura village' in Nowshera tehsil. Hukmat Khan and Ajab Khan owned 8 kanals 9 marlas of land bearing khasra Nos. 64 and 65 in Mahal Shaidi Payan, while Muhammad Shah owned 1 kanal 4 marlas of land out of 24 kanals 19 marlas in khasra No. 540/ in Mahal Mufti. By a deed which ostensibly is an exchange deed dated 11th March 1948, Hukmat Khan and Ajab Khan on one side and Muhammad Shah on the other exchanged their respective lands fixing their prices at Rs. 400 each. The deed was registered the same day.

On the 24th of March 1948, Hukmat Khan and Ajab Khan sold the land which they had got from Muhammad Shah by the above exchange deed in favour of one Muhammad Akram for Rs. 1,000. This amount was paid by Muhammad Akram to Hukmat Khan and Ajab Khan in the presence of the Sub‑Registrar.

On 1st March 1949, Khalo Khan alias Hidayatullah Khan, the son of Ajab Khan and Anwar Khan, the son of Hukmat Khan, instituted a suit out of which this revision petition has arisen for possession by pre‑emption of the land, which their fathers had given in exchange to Muhammad Shah. They claimed that the transaction was in fact a sale, which had been given the cloak of an exchange in order to defeat the right of the prospective pre‑emptors.

Muhammad Shah inter alia stated that the transaction in his favour was in fact an exchange, and, therefore, the pre‑emption suit did not lie.

On the pleadings of the parties the‑learned lower Court framed the following issues :‑-

(1) Is the transaction in question a sale and as such is subject to pre‑emption

(2) In case of issue No. 1 being proved‑in favour of plaintiffs have plaintiffs preferential right of pre‑emption

(3) In case of a decree in favour of plaintiffs are they entitled .to a set=of of‑ Rs. 300 against the sale price on account of cutting of fruit trees from the land in suit by the defendant

(4) What is the market value

(5) Has defendant No. 3 made any improvement in the form of building in the land in suit ; if so, to what extent, and is he entitled to any compensation

(6) Relief.

The learned trial Court decided issue No. 1 against the plaintiffs arid held that the transaction in dispute 'was in fact an exchange, and dismissed the plaintiff's suit‑With costs.

On appeal the learned Senior Sub‑Judge set aside the decree of the learned trial Court, and holding that the transaction was in fact a sale, remanded the case back to the trial Court under O. 41, r. 23 Civil Procedure Code for the determination of the other issues. Costs were ordered to follow the event.

Muhammad Shah died during the pendency of the case. His legal representatives were brought on the record," who have now come up on revision 'to this Court against the order of the learned Senior Sub‑Judge, remanding the case to the trial Court.

The only question which has been argued before me by the learned counsel on both sides is the real nature of the transac tion in dispute.

The general principle is conceded by both the counsel, that a transaction would be taken on its face value unless it is shown by some cogent evidence that it is otherwise. In a transaction which is on the face of it an exchange, in order to make the Courts find that it was in fact a sale, the claimant must prove that a consideration in cash had passed for the property, because the consideration in cash is a sine qua non for making a transaction a sale.

It is true that it is very difficult for a person, who attacks a certain transaction to prove that it is something else than what it purports to be, because the parties to the deed take all possible precautions to hide their true intentions, but in spite of that the plaintiff must bring some circumstances on the record from which it can reasonably be inferred that the transaction was what the plaintiff claims it to be. In the case before me the pre‑emptors claimed on the following circumstances that the transaction, which on the face of it was an exchange, was in fact a sale:---

(1) That thirteen days after the original transaction Hukmat Khan and Ajab Khan sold the property, which they had got from Muhammad Shah in favour of Muhammad Akram, who is said to be a servant of Muhammad Shah ;

(2) that the possession of that property in spite of the exchange and the subsequent sale to Muhammad Akram conti nued to be with Muhammad Shah, and

(3) that their is obvious disparity between the value of the lands which had been exchanged with each other.

As regards the question that the property had been sold in favour of Muhammad Akram, there is no evidence on the record to show that it was sold for the benefit of Muhammad Shah. To start with there is nothing to show that Muhammad Akram, as has been alleged, is a servant of Muhammad Shah. On the contrary it has been admitted by Hukmat Khan and Ajab Khan in the sale‑deed, which they executed in favour of Muhammad Akram that the latter was their maternal‑uncle's son. The only connection which has been established between Muhammad Akram and Muhammad Shah is that both of hem were arrayed on the same side in certain security proceedings. That fact‑ alone, however, in view‑of very close relationship which exists between Muhammad Akram or) one side and Hu4mat Khan and Ajab Khan on the other, will not be enough to hold that Muhammad Akram purchased the property from his cousins for the benefit of Muhammad Shah. A perusal of the sate‑deed in favour of Muhammad Akram and the endorsement of the Sub‑Registrar on the back of this deed clearly show that the entire consideration of Rs. 1,00 was paid by him to Hukmat Khan and Ajab Khan in presence of the Sub‑Registrar. If this transaction was a sham transaction resorted to only for the benefit of Muhammad Shah, I do not think the amount would have been paid in cash in pre sence of the Sub‑Registrar.

The second ground urged by the plaintiffs' counsel for holding that the transaction in question is in fact a sale is equally weak. No doubt the Patwari has appeared in the witness‑box and stated that the possession of the property which Muhammad Shah had given in exchange to Hukmat Khan and Ajab Khan had not changed hands, but then the Patwari's statement is‑not corroborated by any documentary evidence on the record No khasra girdawaris have been produced or proved in the case. As opposed to the Patwari's statement there is the evidence of Muhammad Akram, which I see no reason to doubt, to the effect that he is in possession of the property in his own name.

On the third ground, which deals with the disparity between the prices of the two lands, my attention has been invited to the patwari's statement, 'who said‑that according to the Five‑yearly average the land which Hukmat Khan and Ajab Khan transferred to Muhammad. Shah was worth Rs 2,535, arid the land which Muhammad Shah transferred to them was worth only Rs. 182.

There cap be no doubt that five‑yearly‑average is an important piece of evidence in pre‑emption cases but in certain cases it can be extremely misleading, and that in this particular case it certainly is misleading is proved by the fact that thirteen days later the land which according to the five-year average was worth Rs. 182, and which according to the deed in question was worth Rs. 400 only was as a matter of fact sold for Rs. 1,0001 only. . .

On these three grounds I am not prepared to hold that the transaction, which on the face of it is one of exchange is in fact that of sale. No evidence' was produced by the plaintiffs to show that any sale consideration has passed between Muhammad Shah on one side and Hukmat Khan and Ajab Khan on the other. Consequently the learned Senior Sub‑Judge had no evidence before him to come to the conclusion that the transaction in dispute was in fact that of sale, and the circumstances which had been brought before him were in my opinion not sufficient to arrive at the above conclusion.

I, therefore, accept this petition, set aside the judgment of the lower Appellate Court and restore that of the trial Court.

In view of the fact that the question' involved in the case was a difficult one, I leave the parties to bear their own costs throughout.

K. M. A. Petition accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.