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Civil Revision No. 17 of 1981, decided on 1st February, 1986.

‑‑ O. I, r. 3‑North‑West Frontier Province Pre‑emption Act (XIV of 1950), S. 4‑Suit for pre‑empt ion‑Exchange claimed to be sale Vendor/exchanger not impleaded as party ‑ Effect‑Vendor/exchan ger, held, would be deemed not only to be proper party but more than that in view of transaction's possibility of being declared as sale in which case. defendants would claim back land given in exchange to such vendor/exchanger.

‑‑ S. 4‑Civil Procedure Code (V of 1908), O. XIV, r. 1‑Qanun‑e‑Shahadat Order (10 of 1984),. Art. 118‑Right of pre‑emption Disguised transaction‑Framing of issue‑Burden of proof‑Right of pre‑emption, held, would arise only in respect of sale of land and property‑Where, however, transaction was ostensibly disguised other than as sale, Court, held, would be required to strike issue whether such transaction was sale‑Onus to prove same as sale would be on pre‑emptor‑[Words and phrases].

‑ O. XX, r. 14‑Pre‑emption decree‑Non‑fulfilment of condition‑. Effect‑Pre‑emption money not paid by pre‑emptor within specified time, held, would result in dismissal of suit with costs‑ [Pre‑emption].

P L D 1966 S C 83 and P L D 1957 Lah. 72 ref.

‑‑ O. XX, r. 14‑General Clauses Act (X of 1897), S. 10‑Pre emption decree‑Non‑deposit of pre‑emption money due to inabi lity‑Pre‑emption decree, held, would become operative on deposit of pre‑emption money within prescribed period‑Non‑deposit of pre emption money within specified time would. result in dismissal of suit‑In case of closed holiday, however, act performed on next opening day would be acknowledged as due performance under S. 10 of General Clauses Act, 1897 ‑In case of inability to deposit pre emption money due to rush on bank on last day, pre‑emptor would have to demonstrate due vigilance by immediately approaching Court to tender preemption money‑In such case benefit of S. 10, General Clauses Act would be available to pre‑emptor‑[Pre‑emption].

‑‑ S. 54‑Sale‑Transaction of‑Sale, held, was transfer of owner ship in exchange for price paid or promised or part paid or part promised‑Price in fact would be essence of contract of sale Unless same was fixed and paid or promised or part paid and part promised, there would be no sale in eye of law.

AIR1935Pesh.191;PLD1982SC17and1976SCMR104ref.

‑‑ S. 115‑Transfer of Property Act (IV of 1882), Ss. 54 & 118‑Revisional jurisdiction, exercise of‑Concurrent findings of fact Upsetting of‑Where fact of transaction showed same to be exchange of two areas with no disparity to extent of area or quality of land, while possession remaining with original/old owners, such transaction, held, would rather speak of non‑entity of transaction either as sale or exchange‑Concurrent findings of Court, below regarding transac tion as sale was upset by High Court in revisional jurisdiction‑Pre‑emptor's suit would stand dismissed on account of non‑deposit of pre‑emption money within prescribed period as well as on account of nature of transaction not proved to be sale.

Kh. Abdur Rashid for Petitioners.

Muhammad Humayun Khan for Respondent.

Date of hearing : 22nd January, 1986.

29/5561 share accruing to 1 Kanal 9 Marlas area out of Khasra No. 1421 was acquired by Khan Muhammad and Abdur Rehman sons of Abdullah, the petitioners through exchange vide Mutation No. 2049 in lieu of their land in the same area out of two Khasra numbers given to Muhammad Aslam Khan vendor/exchanger vide Mutation No. 2048. Both the mutations were entered on 9‑7‑1978 and attested on 27‑8‑1978 in the presence of the parties to 'the transaction. Mir Zaman respondent pre empted the transaction of Mutation No. 2049 claiming the same a sale allegedly effected for consideration of Rs. 150 although ostensibly disguised exchange but no possession transferred on the spot nor the lands exchanged were earmarked through Tatimas. The pre‑emptor claimed to be a co sharer, contiguous owner and participator in appendages and immunities. Muhammad Aslam the vendor/exchanger was not impleaded a party although he was definitely a proper party rather more than a proper party in the sense that in‑case the transaction is held to be sale the transferors/ petitioners shall ask for the return of the land given to him in tile alleged exchange. The petitioners denied the superior right of pre‑emption of‑the respondent and claimed the transaction a genuine exchange, besides raising objections of limitation, waiver and estoppel. There were framed the following issues in the case :‑

(1) Whether the plaintiff has got a cause of action O.P.P.

(2) Whether the suit is within time O P.P.

(3) Whether the plaintiff has waived his right of pre‑emption O.P.P.

(4) Whether the plaintiff is estopped by his own conduct O.P.P.

(5) Whether the suit transaction is exempt from pre‑emption O.P.P.

(6) Whether the plaintiff has got a superior right of pre‑emption O.P.P.

(7) Market value

(8) Relief.

2. It is again pointed out that under section 4 of the N.‑W.F.P. Pre emption Act, 1950 the right of pre‑emption only arises in respect of the sale of the land and property and when a transaction is ostensibly disguised other than a sale and the pre‑emptor claims the same as sale the Court must strike an issue whether the transaction is a sale placing the onus on the pre emptor to prove the issue. In the case the learned trial Court framed issue No. 5 whether the suit transaction was exempt from pre‑emption with onus on defendant which is not a correct practice. Anyhow since the parties were conscious of the legal and factual points, they being at variance on them and they have adduced evidence for and against the points in issue and have not raised any such objection in the trial Court and appellate Court I would not detain myself any longer in the matter and shall determine the issues to the light of evidence on record.

3. The pre‑emptor examined Patwari Halqa (P. W. 1) who placed on file Jamabandi Zar‑e‑Kar Exh. P. W. 1/1 and stated that besides the two exchange mutations the defendants had also purchased land vide Mutation No. 2050 at the same time which is also a subject of pre‑emption by the pre‑emptor. He further stated that the lands exchanged were not ear marked on the spot through Tatimas and no possession has been inter se transferred. He also placed on file Cust Panjsala vide the market value of the suit land was assessed for Rs. 360/60. There was not brought on file evidence about the market value of the land given in exchange by the defendants. Neither the Patwari Halqa nor the pre‑emptor examined as P.W. 2 recorded any evidence about the market value of the said land. Pre‑emptor, however, casually stated that there was a difference between the prices of the lands and the kinds of the lands and that no possessions have been transferred to each other. On the other hand the defendant examined as D. W. 1 stated that the land was acquired in exchange and possession inter se had also been transferred. He admitted that he had purchased land vide Mutation No. 2050 in the same Khasra and that all exchange mutation and sale mutation were entered and attested on the same days. He reported his ignorance if the kinds of the lands given in exchange were the same. He stated that in fact the land given in exchange was also situated in the close vicinity of the suit land. On the basis of the above evidence the learned trial Court held the transaction as sale chiefly for the reason that there has not been transferred the possession of the exchanged lands to each other and he accordingly granted a decree to the pre‑emptor finding him a co‑sharer on payment of Rs. 360.36., Since the pre‑emptor has already deposited a sum of Rs. 150 he was, therefore, directed to deposit the balance amount within one month failing which the plaint was to be treated as rejected and the decree to be deemed to have been cancelled. The judgment and decree were given by the trial Court on 5‑10‑1980. Here again it is pointed out that the learned Civil Judge should read the provisions of Order XX, rule 14, C. P. C. which provide for the dismissal of the suit with costs if the purchase money is riot paid by pre‑emptor within the prescribed period. Under the terms of the aforesaid decree the pre‑emptor was obliged to deposit the balance amount on or before 5‑11‑1980 but he deposited the balance amount on 6‑11‑1980 and thus in a way his suit stood dismissed as it was a contingent decree subject C to the deposit of the purchase price and only . on the fulfilment of the condition within the prescribed period the decree for possession in favour of the pre‑emptor was to become operative. In case he was to commit a default in that respect the decree of the dismissal of his suit was to become effective. Law on the point is settled and reference may be made for confirmation of the view to P L D 1966 S C 83. The defendants, however, still filed an appeal against the judgment and decree and also raised the objection of the non‑deposit of the balance purchase price within the prescribed period but the learned District Judge confirmed the judgment and decree of the trial Curt on merits as well on the point of the deposit of the purchase price within the prescribed period as he thought that the pre‑emption amount was to be deposited before 7‑I 1‑1980 and not on or before 5‑I1‑1980. Defendants have to seek a redress as against the judgment and decree of the trial Court as well the appellate Court by the instant revision.

4. On the day of arguments respondent filed an affidavit for the first time posturing a case that he was directed by the trial Court to deposit the balance purchase price within a month vide his judgment and decree

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