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Civil Revision No. 449-D of 1982, decided on 2nd February, 1983.

-- S. 115-Revision-District Judge ignoring material facts in his findings by adopting somewhat fallacious process of reasoning-a, Illegality thus committed, held, can be set right in revision by High Court.

Ch. Aziz Ahmad fbr Petitioners.

Ch. Amjad Khan and Ch. Muhammad Naeem for Respondents.

Date of hearing : 2nd February, 1983.

This petition seeking revision of the judgment of the learned Addi tional District Judge, Sialkot, dated the 4th March, 1982 accepting the respondent's appeal against and reversing the judgment and decree of the learned Senior Civil Judge, Sialkot, dates the 21st July, 1981 thereby dis missing the petitioner's suit for possession by pre-emotion of two marlas of land in dispute, being 1/74th share of seven kanals eight marlas of land entered in Khasra No. 927, situate in the area of village Channumom, Tebsil and District Sialkot, arises out of the following circumstances. One Muhammad Asgbar, son of Muhammad Abdullah, was owner of three kanals ten marlas of land being 35/76th share of the aforementioned seven kanals eight marlas of land being Khasra No. 927. He transferred two marlas out of the land owned by him to Miran Bakhsh, son of Arura, and Muhammad Yousaf, son of Faqir Muhammad, respondents, and muta tion No. 84 (Exh. P. 1 and D. W. 3/1) reciting the alienation as gift was sanctioned on the 8th April, 1980. Describing the conveyance to be sale, Muhammad Hussain and Muhammad Siddique; son of Barkat Ali, peti tioners whose preferential pre-emotive right is not in dispute, instituted suit on the 24th June, 1980 to pre-empt the same. The respondents took the stance that the transfer of the land by Muhammad Asghar in their favour was by way of gift and hence was not pre-emptible. The sole point raised for determination before the learned Courts below as also before this Court was whether Muhammad Asghar had sold or gifted the land to the respondents. The learned trial Senior Civil Judge found that actually the respondents had purchased the land from Muhammad Asghar but described it as gift to evade the law of pre-emotion. He decreed the petitioners' suit on payment of Rs. 400 which he adjudged the value of the land. However, the learned Additional District Judge took the contrary view in appeal and holding the conveyance to be gift dismissed the petitioners' suit.

2. The admitted facts, as transpire from the parties' evidence and which the learned trial Judge used to form his view are that Muhammad Asghar, who is not related to the respondents, is a married person having wife, a son, two daughters, parents, five brothers, sisters, nephews and nieces, to none of whom he ever made any gift of land, and owned only three and a half kanals of land, that he titled land. of others to make his both ends meet and that he was under no obligation to the respondents who were quite wealthy persons. The respondents had earlier purchased 99 kanals of land in the same. village for Rs. 3,25,000 and the petitioners had brought suit for possession through pre-emotion of the same. The suit is pending and is awaiting disposal its decision is to depend on the outcome of the present petition. The respondents did not own any land in the village before the said purchase. As contended by the learned counsel for the petitioners, the respondents, in the dispute of transaction of gift, which was in reality sale, acquired ownership of two marlas of land in dispute in order to improve their right of pre-emotion and defect the petitioners' suit for possession of 99 kanals of land. Muhammad Asghar was shown in the Khasra Girdawari register (copy Exh. D. .1) to continue to be in possession of the land even after the alleged gift. In these circumstances the learned trial Judge remarked that there appeared no conceivable reasons for Muhammad Asghar to gilt away the land to the respondents.

3. The learned Additional District Judge altogether ignored to touch the considerations which weighed with the learned trial Judge to reach his conclusion. He adopted a different approach, which to say the least, besides being evasive to discuss pertinent matters, was legally improper. He considered the petitioners to be incompetent to object to the non-delivery of possession of the land in dispute under the gift as they were strangers. He was influenced by the petitioners' failure to mention in the plaint the names of the witnesses in whose presence Muhammad Asghar had sold the land to the respondents. Needless to say such a fact, which relates to evidence, is not required to be included in the pleadings. He attached undue importance to the testi mony of Muhammad Asghar and accepted his word as true that he had gifted the land to the respondents though the respondents had not cared to enter the witness-box.

4. 'The learned counsel for the petitioners pointed out that as origi nally Muhammad Asghar had executed an unregistered deed of gift on insufficiently stamped paper, which is said to have been lost, ho oral evidence to prove the gift was admissible. Therefore, he maintains, the gift could not be said to have been established.

5. As mentioned above Muhammad Asghar is not bound by any sort of tie of relationship or friendship with the respondents. He s a petty landowner and financially not well placed as compared to the respondents who are quite rich. They are not shown to have done anything for his benefit. He is living happily with his other family members. Therefore, his statements that he had made the gift in favour of the respondents just for God's sake cannot be accepted at face value, it is legitimate to infer that the respondents by acquisition of the land in question wanted to improve their right of pre-emotion to defeat the petitioners' other suit and as it was not possible if the transaction was truly described as sale they tried to give it the colour of gift. As the learned Additional District Judge recorded his finding while ignoring the material facts and by adopting somewhat fallacious process of reasoning the illegality he committed can be set right in revision by this. Court. The petition is accepted the judgment and decree passed by the learned Additional District Judge are set aside and those of the learned Senior Civil Judge restored. The petitioners will get their costs throughout.

M. Y. M. -- Petition accepted.

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