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Civil Petition No. 113‑P of 1984, decided on 19th May, 1984.

(Against the Judgment and Order of the Peshawar High Court, Peshawar, dated 21‑1‑1984 (D. I. Khan Bench) in C. P. No. 212 of 1983).

---Art. 185(3)‑N: W. F. P. Pre‑emption Act (XIV of 1951), S. 4 Specific Relief Act (I of 1877), S. 9‑Exchange‑Sale‑Superior right of pre‑emptor on account of sale and contiguity ‑ Documentary evidence showing that at relevant time when exchange of property took place, portions of land which were said to be under river were in fact cultivated‑No rebuttal to such evidence produced‑Presumption raised by such evidence, held, had to be recognized and suitably given effect to‑Courts below not holding as a fact that evidence about passing of price was creditworthy which could make "exchange" a "sale"‑Entire basis of pre‑emption right based on a judgment of civil Court under S. 9, Specific Relief Act, 1877 which related to possessory right of petitioner on contiguous property and not to title in same‑On basis of such a possessory right petitioner, held further, could not claim a superior right of pre‑emption on basis of con tiguity‑Petition for leave to appeal denied for there being no such error in judgment of High Court, as may require further examination by Supreme Court.

Attiqur Rehman Qazi, Advocate Supreme Court and M. Qasim Imam, Advocate‑on‑Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing : 19th May, 1984.

‑The petitioners who are the successors‑in‑interest of Haji Walibat Khan, the unsuccessful plaintiff‑ pre‑emptor, seek leave to appeal against the judgment of the Peshawar High Court dated 21‑1‑1984 whereby accepting a civil revision petition, their suit was dismissed reversing the finding of the Courts below that the exchange was a sale and that the pre‑emptor had a superior right of preemption on account of contiguity.

The two respondents entered into an ostensible exchange whereby respon dent No. 1 gave field No. 443 measuring 1 Kanal 11 Marlas in exchange for land belonging to respondent No. 2 in village Hassan Khel Issaki. Haji Walibat Khan instituted a civil suit contending that the exchange was in fact a sale for Rs. 6,000 and he had a superior right of pre‑emption in respect of Khasra No. 443 about which an exchange mutation had been entered into and attested on 11‑1‑1977. The suit was contested and a number of issues were framed but the two issues which are now of importance for dealing with this petition are the one with regard to the exchange being a sale and the other relating to the superior right of the pre‑emptor. A local commissioner was appointed who inspected the property given in exchange for disputed property and reported that it was under Kurram River and was not available for any use. He had inspected the land in December, 1980 and submitted his report on 4‑1‑1981. The trial Court held that :‑

"The land transferred to defendant No. 2 is Kurram Burd land which has got no existence and value while the land acquired by the defen dant No. 1 is a valuable property."

and concluded from this that there is nothing on the record to show as to why the defendant No. 2 got such valueless land in exchange for his valuable land. The exchange was for that reason held to be a sale and the superior right of pre‑emption was held established on account of contiguity of the land of the pre‑emptor. His suit for possession was decreed on payment of Rs. 6,000.

On appeal, the District Judge affirmed the judgment and decree holding that .‑

"No bona fide exchange has taken place because even a foolish person will not give gold for silver so the transaction from the evidence on the record is not an exchange but a complete sale."

In revision, the High Court examined the entire documentary evidence and held that at the relevant time when the exchange took place, portions of the land which were said to be under the river were in fact cultivated. It was, therefore, not a valueless land. Further, it was held that the entire basis of the pre‑emption right of the plaintiff was a judgment of the civil Court under section 9 of the Specific Relief Act which related to possessory rights on the contiguous property and not to title in the same. It was held that on the basis of such a possessory right he could not claim a right of pre‑emption. Hence the revision‑ was allowed and the suit was dismissed.

The learned counsel for the petitioner submitted that both the questions involved in the case namely, the' exchange being a sale and the superior right of pre‑emption of the plaintiff were questions of fact. They stood concluded by findings concurrently recorded by both the lower Courts. The High Court could not have reversed it in a revision petition. Further, it was submitted that there was the evidence on the record, particularly the report of the local commissioner who had inspected the land in the presence of the parties, to bear out the contention of the plaintiff.

A perusal of the judgment of the High Court clearly gives the impression that the presumption which arose from the documents adduced as evidence was not recognised by the two Courts and extraneous material was made the basis for deciding the case in favour of the petitioner. The reput of local Commissioner, for example, related to the events in 1980 and 1981 while the character and the use of the land as in early 1977 had to be determined. We find from a copy of the jamabandi of the year 1976‑77 that out of 1 Kanai 4 Marlas, 14 Marlas were Nehri cultivable and 10 Marlas were Gher Mumkin i.e. under river. There is no rebuttal to this evidence and the presumption raised by this document had to be recognised and suitably given effect to. There were supporting entries of the Khasra Girdawari, also. None of the Courts held as a fact that the evidence about passing of the price was credit worthy and that made this exchange a sale.

As regards the superior right of the petitioners, we asked the learned counsel whether the title in the contiguous land was based on any other factor except a judgment obtained in proceedings under section 9 of the Specific Relief Act and it was admitted by him that it was on the basis of that judgment alone coupled with the entries in the revenue record. As the entries of the revenue record ware traced in that judgment, it is clear, that the High Court could reasonably conclude that a decree under section 9 of the Specific Relief Act is of no avail in asserting title or in claiming his superior right of pre‑emption on the basis of the contiguity.

We find that there is no such error as may require further examination in this Court. There is no merit in this petition and leave to appeal is refused.

M. Z. M. Petition dismissed.

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