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Civil Petition for Special Leave to Appeal No. 66‑P of 19 70, decided on 7th December 1972.

(On appeal from the judgment and order of the Peshawar High Court, Peshawar, dated 3rd March 1970 passed in Regular Second Appeal No. 369 of 1969).

(a) N.‑W. F. P. Pre‑emption Act (XIV of 1950),

Ss. 4 & l2‑ Fact of alleged vendee having subsequently sold his other lands to defendant‑Cannot be taken notice of to determine nature of earlier transaction (alleged to be sale) especially when relevant evidence not placed before Courts below.

(b) Special oath

‑Failure of vendee's attorney to accept plain tiff's offer for special oath‑Does not prove correctness of plaintiff's assertion regarding nature of transaction.

(c) N: W. F. P. Pre‑emption Act (XIV of 1950),

Ss. 4 & 12 Pre‑emption‑Statement of plaintiff's witness that transaction settler in his presence was one of sale‑Does not prove payment of consideration in cash.

(d) N.W. F. P. Pre‑emption Act (XIV of 1950),

Ss. 4 & 12 Pre‑emption‑Requisites of a sale: Transfer of ownership on one side and payment of price in cash on other side‑Mere possession of property remaining with alleged purchaser or inequality of area: and qualities of land exchanged‑Does not irresistibly give rise to an inference of sale.

Mian Mohammad Younas, Advocate instructed by Amirzada Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 7th December 1972.

This petition for special leave to appeal is directed against an order made by a learned Single Judge of the Peshawar High Court on 3‑3‑70 dismissing to limine a second appeal filed by the petitioner against the dismissal of his pre emption suit by the learned Senior Civil Judge, Bannu acting in first appeal.

By an ostensible mutation of exchange attested on the 8th of May 1968, certain agricultural land situate in village Fateh Khel Feroze in Tehsil Bannu, was exchanged by Ikramuddin with land belonging to the respondent, Fazle Azim Shah. The petitioner, Sher Azam, filed a suit for possession by pre‑emption of only one Khasra number out of the land so exchanged contending that the transaction was in fact one of sale for a consideration of Rs. 100. The suit was decreed by the learned Civil Judge at Bannu, but the decree was reversed in first appeal by the learned Senior Civil Judge. The High Court has maintained the order of the lower appellate Court, observing that its there was no evidence of the passing of consideration in cash, the transaction must be regarded as one of exchange and, therefore, not pre‑emptible.

It is contended by the learned counsel for the petitioner that the Courts below have erred in coming to the conclusion that the transaction was one of exchange simply for the reason that there was no direct evidence to prove passing of the sale price in cash. It is submitted that there were several circumstances brought out in evidence to show that the transaction was not one of exchange, namely:

(a) that the respondent, Fazle Azim Shah, was in possession of both the properties, thus showing that he had in fact purchased the land in suit as he had not parted with his own land in exchange ;

(b) that there was a difference not only in the area of the property said to have been exchanged but also an the quality inasmuch as the land of the vendor, Ikramuddin, was Nehri Class I, whereas the land offered by the vendee was Nehri Class II ;

(c) that the attorney of the vendee refused to accept the petitioner's offer of a special oath as regards the nature of the transaction ;

(d) that the plaintiff's witness, Ghulam Muhammad, had clearly stated that the transaction settled in has presence was one of sale ; and

(e) that In any case the Jamabandi prepared in 1968 showed that the rest of the area owned by 1kramuddin in the village had been sold by hits to the respondent, Fazle Azim Shah, thus proving that even tile earlier transaction was one of sale and not of exchange.

After hearing the learned counsel at some length we are of the opinion that none of these contentions can succeed. The Jama bandi of 1968, now relied upon by the petitioner, was not placed before the trial Court or the appellate Courts, and it is for the first time that reference has been made to it in the present petition. It is conceded by the learned counsel that the transaction embodied in this Jamabandi is subsequent to the transaction which the petitioner had sought to pre‑empt. It is clear that no notice can be taken of this subsequent transaction to determine the nature of the earlier transaction, especially when the relevant evidence was not placed before any of the Courts below.

The failure of the attorney of the vendee to accept the plain tiff's offer for a special oath does not in any manner prove that the plaintiff's assertion regarding the nature of the transaction was correct. Similarly, the statement of a witness for the plain tiff to the effect that in his presence the transaction settled was one of sale does not prove that in fact consideration was paid in cash.

The Courts below have rightly observed that for a transaction to be a sale it is necessary that price in cash must have been paid for the thing sold, and that there must be transfer of ownership on the one side and cash price for it on the other. In the present case, Courts below were not satisfied that price in cash was paid, and from the mere fact that possession of both the properties remained with the respondent or that the areas and the qualities of the properties said to be exchanged were unequal, no irre sistible inference of sale could be drawn.

For the foregoing reasons we see no merit in this petition which is accordingly dismissed.

Petition dismissed.

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