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Civil Revision No.260-D of 1979, decided on 8th February, 1984.

--S.15--Civil Procedure Code (V of 1908), S.115--Pre-emption suit- Absence of Khasra numbers of land in plaint, held, not such a defect as would render suit liable to dismissal.

Sarwar v. Hakim Khan P L D 1958 (W.P.) Lah. 568 ref.

--S.15--Civil Procedure Code (V of 1908) S.115--Pre-emption suit- Vendee contesting suit and claiming that he acquired land from Vendor through gift on account of his teaching in religious institution without remuneration since long--Vendor neither related to vendee nor shown to be in any way beholden to him or have any contact with him before alienating land in his favour--Vendor not a person of superfluous wealth either--Reasons given for vendor's move to gift land to vendee not acceptable at its face value by any standard of rational thinking--Transaction, held, could not but be taken to be a sale and not a gift--Courts below confining themselves to superficial examination and not correctly interpreting evidence by attaching due importance to various factors, held, committed illegality and their finding, that transaction was a gift and not sale, not sustainable.

---S.15--Civil Procedure Code (V of 1908), S.115--Pre-emption suit- Mere absence of proof of payment of sale price, held, could not prevent transaction to be a sale if other material on record and existing circumstances justified such a conclusion.

---S.115--Revision--Argument advanced for first time before High Court in revision, held, deserved least attention.

---S.15--Civil Procedure Code (V of 1908), S.115--Pre-emption suit- Contention of vendee that alienation of land was a gift from vendor and not sale not emerging true--Judgment and decree of Courts below that transaction was a gift set aside and decree for possession of land in dispute through pre-emption passed in favour of pre-emptor on payment of market value of land passed.

Aftab Iqbal Choudhary for Petitioner.

Mian Sher Alam for Respondent.

Dates of hearing: 4th ,6th ,7th and 8th February, 1984.

This petition seeks revision of the judgment and decree of the learned Civil Judge, Mandi Bahauddin, dated the 7th September, 1976, dismissing the petitioner's suit for possession by pre-emption of 14 marlas of land being 1/15th share of land measuring 10 kanals 10 marlas situate in the area of village Kakka, Tehsil and District Gujrat, which respondent No.1 is alleged to have purchased from respondent No.2 and of the learned Additional District Judge, Gujrat, dated the 7th February, 1979, affirming in appeal the decision of the learned trial Court. Mst. Began, respondent No.2, was the owner of the aforementioned 10 kanals 10 marlas of land. On the 30th December, 11973, mutation No.672 (copy Exh.D 1) was sanctioned by the Revenue Officer regarding gift, purported to have been made by Mst. Began, of 14/15th share of 10 kanals 10 marlas of land in favour of her son, Bahu, respondent No.3, and of the remaining 1/4th share in favour of Muhammad Abid, respondent No.1. Muhammad Abid is not related to Mst.Began. He is resident of another village named Anney.

2. Describing the alienation of 1/15th share of 10 kanals 10 marlas of land in dispute effected by respondent No.2 in favour of respondent No.1 to be a sale and not a gift, Sardara, petitioner, who is a collateral heir of respondent No.2 and whose right of pre-emption is admittedly superior to that of respondent No.1, instituted suit for possession by pre-emption of the land in question. He averred that respondent No.2 had rather sold the land to respondent No.1 for Rs.140.00 which amount was in excess of its market value. He pleaded that respondent No.1 had conspired with respondents Nos.2 and 3 to get the mutation of gift attested in order to save 'his other lands from the operation of law of pre-emption.

3. Respondent No.1 contested the suit and maintained that he had acquired the land from respondent 2 through gift which was not pre-emptible. He claimed that he had been since his forefathers teaching in religious institution without any remuneration and for that reason respondent No.2 had made gift of the land in dispute in his favour. He objected to the sustainability of the suit on account of the petitioner's failure to give Khasra numbers of the land in dispute in the plaint.

4. It may be mentioned that where as it was mutation No.672 which had been sanctioned on the 30th December, 1973, in regard to alienation which was subject-matter of litigation the petitioner inserted the number of mutation as 764 and its date of attestation as the 30th December, 1974, in the plaint. The learned Civil Judge considered the description of the suit land to be defective as no copy of mutation No.674 sanctioned on the 30th December, 1974, had been produced by the petitioner to show that the land in dispute was the same regarding which the said mutation had been sanctioned. He formed the view that the transfer of the land by respondent No.2 in favour of respondent No. l was by means of gift and as such it was not pre-emptible. Therefore, he dismissed the suit. His findings were endorsed in appeal by the learned Additional District Judge.

5. Undeniably it was mutation No.672 which was sanctioned on the 30th December, 1973, in respect of the alienation in question. Writing of mutation No.674 and date of its attestation as the 30th December, 1974, in the plaint was considered to be a clerical error and its amendment was allowed by this Court. With the correction of the mutation number and date of its sanction the defect described by the learned Courts below in the plaint stands removed. The land in dispute can be identified with reference to the entries in the said mutation. Non-mentioning of Khasra numbers of the land is not such IA a defect as renders the suit liable to dismissal. The authority Sarwar v. Hakim Khan P L D 1958 (W.P.) Lahore 568, referred' to by the learned counsel for respondent No.1, does not endorse the argument that mere failure to enter Khasra numbers in the plaint in the instant case should entail the penalty of dismissal of suit.

6. The circumstances in which respondent No.2 was said to have been persuaded to gift the land in favour of respondent No.1, as brought out in the evidence produced by respondent No.1, are these. The late Wali Ullah, father of respondent No.1, was said to be a religious scholar. Muhammad Arif, DW 1, who is a Muazzer, and Khateeb in village Nain, claimed himself to be a pupil of the late Wali Ullah. He says that he told respondent No.2 that the father of respondent No.1 had been his teacher and that she should gift 14 marlas of land to respondent No.1 and she said that she would do so. He confirmed that the late Wali Ullah had a square of land in village Anney and about 10 kanals 12 marlas of land in village Kiddar. Muhammad Abid, respondent No.1, as DW 2 stated that his father had been teaching in village Anney and that the gift in his favour had been affected through Maulvi Muhammad Arif, DW 1. He admitted that he had purchased 36 acres of land in village Kakka through two or three mutations and that suits of pre-emption of the sales had been instituted. These sales were effected after he had secured 14 marlas of land from respondent No.2.

7. Unquestionably respondent No. 2 is neither related to respondent 1 No.1 nor is shown to be in any way beholden to him. Respondent No.2 is not shown to have any contact with respondent No.1 before alienating the land in his favour. She is not a person of superfluous wealth. Actually 10 kanals 10 marlas of land in suit was all that she owned. As conceded by the learned counsel for respondent No.1, the father of respondent No.1, in view of the religious order to which he belonged would not have in any case accepted the gift of the land in dispute from respondent No.2. In these circumstances it looks unnatural that just at the asking of Maulvi Muhammad Arif, DW 1, respondent No.2 would have gifted the land to respondent No.1. In view of the rule laid down in Chiragh Din v. Allah Din, 70 Punjab Records 1916 and Hayat Ali v. Ghazan, 1981 C L C 456, the transaction cannot but be treated to be a sale and not a gift. The insistence of the learned counsel for respondent No.1 that in the absence of proof of payment of sale price the alienation could not be considered to be sale is not apt and in this behalf his reference to the definition of sale contained in section 54 of the Transfer of Property Act, 1882, and what has been observed in Ali Muhammad v. Sanwal, P L D 1961 (W.P.) Peshawar 62, Sher Azam v. Fazal Azim Shah, 1972 S C M R 649, which deal with transactions of exchanges, is otiose. As observed in Tara Chand v. Baldeo, 117 Punjab Records 1890, in such a case to expect the plaintiff to produce eye-witnesses to a sale is to expect an impossibility because if there was a sale it must have been effected in a secret manner and care must have been taken to conceal it. Therefore, mere absence of proof of payment of sale price would not prevent the Court from holding the transaction to be a sale if other material on the record and existing circumstances justify such a conclusion. As already remarked there was no connection between respondents Nos.1 and 2 and the reason given for respondent No.2's move to gift the land to respondent No.1 is not acceptable at face value by any standard of rational thinking. She would not have parted with the land without consideration. Without going deeper into the matter the learned Courts below by confining themselves to superficial examination did not correctly interpret the evidence. By not attaching due importance to the various factors noticed above they committed illegality. Therefore, their finding touching the nature of transfer of land in dispute cannot be sustained; the transfer cannot but be taken to be a sale.

8. The learned counsel for the respondents tried to argue that actually respondent No.1 had adopted the device of procuring the land by gift in order to ward off and successfully resist the pre-emption suit in respect of the lands which he intended purchasing in village Kakka. However, this stance is not spelled out either from his pleadings or from the evidence that he adduced. Therefore, the argument which seems to have been developed for the first time in this Court deserves least attention.

9. In view of the above the petition is accepted, the judgments and decrees of the learned Courts below are set aside and a decree for possession of the land in dispute is passed in favour of the petitioner and against respondents Nos.1 and 2 and it is directed that the petitioner shall pay into the trial Court the sum of Rs.250, which amount the learned appellate Court below has assessed to be the market value of the land in dispute and to which neither party has taken exception, on or before the 19th April, 1984, and respondent No.1 shall deliver possession of the land in dispute to the petitioner whose title thereto shall be deemed to have accrued from the date of such payment but if the amount of Rs.250 is not so paid the petitioner's suit shall be dismissed with costs. The parties are left to bear their own costs throughout.

M. Y. H./3293/L Petition accepted.

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