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Civil Petition for Special Leave to Appeal No. 151 of 1968, decided on 20th June 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 7th February 1968, in Regular Second Appeal No. 430 of 1967).
-‑Transaction whether sale or exchange‑Finding of fact‑Cannot be disturbed in second appeal‑Civil Procedure Code (V of 1908), S. 100.
Sheikh Mahbub Elahi, Advocate Supreme Court instructed by M. B. Khizar Tarnimi, Senior Attorney Supreme Court for Petitioner.
Nemo for Respondents.
Date of hearing : 20th June 1968.
‑The petitioner filed a suit for possession by pre‑emption of some land which according to him, Hassan Shah, respondent No. 2 had sold to Muhammad Shah, respondent No. 1, though in the mutation the transaction was shown as exchange.
The trial Court decreed the suit holding that the transaction was actually a sale and the petitioner has superior right of pre emption. On appeal this decision was reversed by the District Judge, Campbellpur. The petitioner filed a Second Appeal to the High Court without success.
It is contended that as the trial Court found that the land given by Muhammad Shafi to Hassan Shah in exchange of the land in question was in a village different from his own and was of the value of Its. 730 only, the decision of the trial Court should not have beer disturbed in the absence of any findings to the contrary with regard to these facts. It is further pointed out that the land obtained in exchange was soon after the transac tion transferred to Lal Khan the son of the tenant of Hassan Abdus Shah's father. This also clearly indicates that the transaction in question was not in exchange but in the document it was shown as such only to defeat the claim of the petitioner for pre emption.
These contentions were raised in the first appellate Court as well as in the High Court. It was found that the land obtained by Hassan Shah was actually sold for Rs. 3,000 and therefore the other facts by themselves did not indicate that the transaction was a sale and not an exchange. The learned Judges in the High Court have observed that it was for the plaintiffs to prove that cash consideration was paid by the respondent No. 1 to the respondent No. 2. We agree that in a case like this such an onus does not lie but in view of the findings of the lower appellate Court there was hardly any scope for interference by the High Court in Second Appeal. The appeal to the High Court, in our view, was rightly dismissed.
This petition is dismissed.
Leave refused.
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