Syed KHALIL-UR-REHMAN CHISHTI vs ABDUL HAMID KHAN
This petition for leave to appeal challenged the dismissal of a civil revision petition by the Lahore High Court, which had upheld the concurrent findings of the trial and appellate courts regarding a pre-emption suit. The petitioner sought to pre-empt a land transaction, alleging that an ostensible exchange of land was, in reality, a sale designed to defeat his right of pre-emption. The core legal question was whether the transaction constituted a sale or a genuine exchange, and whether the petitioner had successfully discharged the burden of proof to establish it as a sale. The Supreme Court held that the petitioner failed to lead credible evidence to substantiate the claim of a sale. The Court affirmed the concurrent findings of the lower courts, ruling that the authenticity of an exchange cannot be doubted or recharacterized as a sale based merely on conjectures regarding the disparity in the size of the land parcels exchanged. The principle laid down is that concurrent findings of fact regarding the nature of a transaction will not be interfered with in the absence of substantial evidence to the contrary.
- Can a transaction of exchange be recharacterized as a sale solely based on the disparity in the size of the land parcels exchanged?
- Is a party entitled to challenge concurrent findings of fact in a civil revision petition without presenting substantial evidence to the contrary?
- Does the presumption under Article 129 of the Qanun-e-Shahadat Order 1984 mandate that an exchange of land be treated as a sale in the absence of evidence?
- Article 129, Qanun-e-Shahadat Order 1984
ORDER
' JAVED IQBAL, J.--This petition for leave to appeal is directed against the order dated 12-11-2002 passed by learned Lahore High Court, Lahore, whereby the civil revision petition preferred on behalf of petitioner has been dismissed and judgment and decree dated 2-7-2002 passed by learned Additional District Judge has been kept intact.
2. Precisely stated the facts of the case as enumerated in the order impugned are that "on 7-4- 1997, the petitioner brought a suit for preemption against the respondent, claiming that the ostensible exchange of the suit-land by the respondent with the vendors Mst. Bashiran Begum etc., vide Mutation No,661, dated 9-12-1996, in fact is a sale and has been manoeuvred with an object to defeat the right of pre-emption of the petitioner; that in fact, the sale had taken place for a sum of Rs,5,00,000 but the value of the land in dispute at the time of attestation, has been shown as Rs,6,00,000. The petitioner claims to have learnt about the sale on 25-3-1997 and made Talb-e- Muwathibat the same day, notice of Talbe-Ishhad was issued on 4-4-1997 and thereafter, the suit was filed". The claim of the petitioner was controverted in the written statement on the ground that the transaction of exchange was genuine and not preemptible. The learned trial Court after completion of codal formalities and recording evidence pro and contra, dismissed the suit by means of judgment dated 22-5-2000. Being aggrieved an appeal was preferred which met the same fate and dismissed by learned Additional DistrictJudge vide judgment and decree dated 2- 7-2002. A revision petition was preferred assailing the order of learned Additional District Judge which was also dismissed vide order impugned, hence this petition.
3. Heard Mr. Iqbal Mahmood Awan, learned Advocate Supreme Court on behalf of petitioner who mainly contended that the transaction is collusive and in fact the sale had taken place inter se the vendor and vendee and in view of the provisions as contained in Article 129 of the Qanun-e- Shahadat Order, 1984 it was obligatory for the forums below to presume it to be sale and not exchange. It is urged with vehemence that there is no evidence on record showing that the exchange had in fact taken place which otherwise is not conceivable as 79 Kanals and 7 Marlas of land cannot be exchanged with that of 16 Kanals.
4. Ch. Farrukh Mahmood Sulehri, learned Advocate Supreme Court for the caveator supported the order impugned by reiterating the reasons as contained therein with the submission that the petitioner could not substantiate the factum of sale by leading worthy of credence evidence.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have thrashed out the record with the eminent assistance of learned counsel. The judgment of learned trial, Appellate and revisional Courts have been perused. After having gone through the entire record we are of the considered opinion that the entire evidence led by the petitioner to support his prime plea that the transaction in question was sale and not transfer simpliciter is vague and sketchy. A careful scrutiny of the statements of Ghulam Fareed (P.W.2), Abdul Mustafa Khan (P.W.3) and Ch. Abdul Ghani Zahid, Advocate (P.W.4) would reveal that factum of sale could not be established. We are of the opinion that merely on conjectural presumptions that 79 Kanals of land could not have been exchanged with 16 Kanals of land, the authenticity of exchange could neither be doubted nor treated as sale.
The concurrent findings of fact that the transaction in question was an exchange and not sale arrived at by the learned trial Court, concurred by learned Appellate Court and affirmed by learned High Court cannot be interrupted without any justification, which is lacking in this case.
6. The conclusion as arrived at by the learned High Court is strictly in accordance with law, settled norms of justice and being well-based hardly warrants any interference. The petition being meritless is dismissed and leave declined.
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