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Regular Second Appeal No. 82 of 1985, decided on 7th January, 1987.

---S. 4--Civil Procedure Code (V of 1908), S. 100--Second appeal- Concurrent findings of two Courts below that ostensible transaction of gift was in fact transaction of sale, subject to pre-emptive right of pre-emptor--In absence of misreading or non-reading of evidence, High Court in second appeal affirmed findings of two Courts below on factum of transaction and right of pre-emption--Where another view to the contrary could have been possible to be reached on basis, of evidence on record, even then High Court would not have sustained second appeal against those findings--Second appeal being devoid of merit was dismissed in limine.

Malik Muhammad Hussain Awan for Appellant.

Ghulam Muhammad respondent No. 1 filed a suit for possession through pre-emption regarding 21 Kanals of land situated in village Devi Daspura, Tehsil Bhalwal, District Sargodha. He claimed that the alienation of this land purportedly by a gift-deed, dated 12-6-1968, executed by Talu respondent No. 2 in favour of Mumraiz Khan defendant-petitioner, was in fact a sale made for a cash consideration of Rs.300. Plaintiff based his claim for pre-emption on the ground of his being an owner of the estate which, it was alleged, Mumraiz Khan was not. It was also contended that Mumraiz Khan had purchased another 43 Kanals of land from one Mst. Ulfat through a registered sale-deed, dated 8-1-1968 which had been sought to be pre-empted by the plaintiff and it was with a view to defeat his claim thereabout that the defendant Mumraiz Khan had contrived to disguise the transaction in suit into a gift. Suit was contested by both the transferor and the transferee by filing independent written statements to reiterate that the suit land had actually been gifted in lieu of services rendered by Mumraiz Khan. The suit was set down to be tried on the following issues:--

"(1) Whether the alienation in suit is a sale O.P.P.

(2) In case of proof of issue No: 1 for what consideration the sale in suit had taken place

(3) What was the market value of the land in suit at the time alienation in suit O.P. Parties.

(4) Whether the right of pre-emption of the plaintiff is superior than that of defendant No. 2 O.P.P.

(5) Relief."

Parties led their evidence wherein, on the plaintiff's side two pre-emption suits were got proved to have been filed against Mumraiz Khan in the year 1968 by the present plaintiff Ghulam Muhammad and one Muhammad Afzal, the proceedings whereof had been stayed or 28-7-1971 until the disposal of this suit. Apart from leading evidence to prove the transaction to be a sale effected for a consideration of Rs.300 plaintiff also produced copies of revenue record to establish that possession of. the suit land had not in fact been transferred under the alleged gift. In addition thereto, Exh. P.12, a copy of the School-Leaving Certificate of the transferee Mumraiz Khan, was also produced to establish that at the time of creation of Pakistan he was of the age merely of 3/4 years and hence he could not conveciebly have rendered any service to Talu in securing allotment of the lard, as had been alleged by him to support the impugned transaction to be a gift. On the defendant's side apart from other evidence, an agreement (Exh. D.1) was produced which embodies the undertaking made on 6-5-1967 by Talu to make a gift in favour of Mumraiz Khan. It was stated that the agreement Exh. D.1 was written by the Stamp-vendor Zaheen Ahmad, who had also sold the stamp-paper whereat Exh. D.1 is written but despite the admission that Zaheen Ahmad is alive, neither was he himself examined as a witness nor was any other evidence led to prove the purchase of the relevant stamp-paper on the alleged date and, in a bid to prove Exh. D. 1, its marginal witnesses Abdullah Khan and Nazar Muhammad were examined as D.Ws. 1 and 2 respectively who stated that talk about the gift took place in the house of Mumraiz Khan and an agreement to gift the land was executed 15/16 days after the talk. The registered gift deed (Exh. D.2), however, bore the date 12-8-1951:. The learned trial Judge refused to accept Exh. D.1 as a genuine document for the reason, among others, that its execution was opposed to common sense and holding on the basis of the evidence on the record that the transaction was in fact a sale, by his judgment dated on 17-11-1984, he decreed the suit of the plaintiff with the finding that his right of pre-emption is superior on account of his being an owner of the estate and a co-sharer as had even been conceded before hero by the counsel for defendants.

2. Mumraiz Khan maintained an appeal against the trial Court's decree in the Court of learned District Judge, Sargodha by also impleading the transferor Talu as respondent No. 2. Therein issue No. 1 alone was contested. Upon a reconsideration of the entire evidence, learned District Judge affirmed the findings of the trial Court for almost the very same reasons as had prevailed with the trial Court reject the assertion about gift having been made by a refugee (Talu) in favour of a local (Mumraiz Khan) in lieu of the alleged services rendered by him in securing to him the allotment of the lard, for the reason that he was only an infant at that time. Copies of the orders and the plaints in the earlier two suits for pre-emption filed against Mumraiz Khan having been brought on the record as Exhs. P. 6 to P.10, learned District Judge held in concurrence with the trial Court that the agreement to gift (Exh. D.1) was a forged and fictitious document, prepared subsequent to the institution of those pre-emption suits and the assertion about the transaction in suit being that of a gift was consequently repelled, as had even been done by the trial Court. He dismissed the appeal on 10-3-1985 by affirming the findings and decree of the trial Court. Mumraiz Khan has now come up to this Court in second appeal.

3. Learned counsel wanted to contest the concurrent findings of the two Courts below with regard to the document Exh. D.1 having been manufactured subsequently and in this context desired to rely upon the evidence of Nazar Muhammad trial Court's record has been sent for and perused.

4. Learned counsel contended that the evidence of Nazar Muhammad D.W. 2 has not received adequate consideration inasmuch as he had stated that he is in possession of the land. There is no substance in this contention. His evidence is to the same effect as that of the other witnesses, which has been duly considered. Even so, learned counsel has not been able to point out any misreading or non-reading of evidence to have been made by either of the two Courts below in reaching the concurrent findings of fact adverse to the appellant. I have myself perused the entire evidence and have no hesitation in affirming the conclusions reached by them upon due consideration of the evidence which leads to the irresistible conclusion that Exh. D.1 was falsely prepared and pre-dated to a time before the institution of the other two suits with a view to imparting back effect to the registered deed Exh. D.2, dated 12-6-1968 but the salient facts proved and admitted on the record are that, Talu is himself a family man and he has no relationship, not even a remote one, with Mumraiz Khan with whom even a bondage of friendship has not been proved. Muchless. may he have been capable of rendering any service to the transferor and it is simply preposterous to assert that it may have dawned upon him after two decades to pay off for the alleged services of Mumraiz Khan and therein also he may have elected to execute a mere agreement to make a gift on some further date. Not only that an agreement to make a gift is only a meaningless thing, neither making any sense nor being even enforceable in law but also the question arises that if Talu may have really been shaken by his conscience at that stage then why may he have even then executed a mere agreement and not the gift-deed itself Exh. D.1 is obviously a false document and, in the circumstances in which Mumraiz Khan was placed by the two earlier pre-emption suits on account of the fact that he was not an owner of the estate, it is not unreasonable to conclude that he may have disguised this transaction of sale into that of a gift. I have no hesitation in affirming the views to that effect expressed by the two Courts below concurrently upon a due consideration of the evidence on the record and even if another view to the contrary may have been possible to be reached on the basis of this evidence, even then, it would not have sustained a second appeal against those findings.

5. There does not emerge any case within the scope of section 100 of the C.P.C. Hence, dismissed in limine.

A.A./M-83/L Appeal dismissed.

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