KARIM BAKHSH through L.Rs, and others vs JINDWADDA SHAH and others

' SARDAR MUHAMMAD RAZA KHAN, J.--- Karim Bakhsh and others through instant petition have challenged the judgment and decree dated 27-6-2001 passed by Multan Bench of Lahore High court whereby., on acceptance of the Regular Second Appeal filed by Jindwadda Shah and others, the respondents, their pre-emption suit was decreed, setting aside the dismissal of suit by the First Appellate Court on 5-4-1983 and restoring the decree dated 29-2-1964 granted by the trial Court.

2. Mst. Bilqees Elahi and Mst. Zahoor Elahi through registered exchange deed dated 30-4-1960 gave 387 Kanals, 15 Marlas of land to Karim Bakhsh, Wahid Bakhsh and Mst. Hidayat Bibi, the present petitioners, in Mauza Miranpur Tehsil Lodhran in exchange of land measuring 8 Kanals in Mauza Taraf Juma Khalsa, Tehsil and District Multan.

3. Sardar Shah father of present respondent Jindwadda Shah filed a suit for pre-emptor which was allowed by the trial Court on 29-2-1964. The learned First Appellate Court vide its judgment, dated 29-4-1965 and vide its second judgment after remand and on 5-4-1983 again dismissed the suit. A regular second appeal was again filed by the pre-emptor before the High Court which through the impugned order was decreed upholding the first decree dated 29-2-1964 passed by the Administrative Civil Judge.

4. The trial Court as well as the High Court are of the view that the transaction in question is a sale and not an exchange. As the first two A Courts Were at variance, the learned High Court was justified in appreciating the evidence and in arriving at the conclusion as to which one of the decisions was in accord with the evidence on record.

5. The first registered exchange deed is dated 30-4-1960 which was registered on 4-5-1960 and is on file as Exh.D.1. No doubt the contents of the deed do give an impression of exchange but vide mutation (Exh.P.10), the land given in exchange by Karim Bakhsh etc. To Mst. Bilqees etc. Was cancelled arid the mutation rejected on 22-7-1961. This rejection was on the ground that the land given in exchange by Karim Bakhsh etc. Had already been sold by them to one Karam Hussain and that they had no title to the land measuring 1 acre being given to Mst. Bilqees etc. On 4-5-1960 when the deed (Exh.D.1) was registered. This is strong documentary evidence against the non- genuineness of transaction of exchange.

6. P.W.3 Karim Bakhsh has admitted that the price of land in suit was settled at the rate of Rs,300 per Bhiga and that the same was settled through brokers. On the first page of Exh.D.1, it is mentioned that the price of the land is Rs,30,000. These two versions reconcile with each other and hence the price of the land was also proved. Muhammad Mehdi Shah (P.W.5) is admitted to have had completed transaction about exchange. When the said witness appeared in Court he clearly stated that the transaction in dispute was one of sale and not of exchange. P.W.5 is also the husband of Mst. Zahoor Elahi, one of the parties to the transaction.

7. Since no land in exchange was given by Karim Bakhsh etc. To the opposite ladies and since the said transaction stood cancelled through Mutation No,4390 (Exh.P.10) on 22-7-1961, what the petitioners did do thereafter was to execute another exchange (Exh.D.2) on 28-11-1961. This second transaction was certainly seven and a half months after the institution of the pre-emption suit on 4-5-1961. When once the preemption suit stood filed, no mala fide, improvement could be done thereafter during the pendency of the suit.

8. In these circumstances, the learned trial Court as well as the learned High Court were justified in holding that the transaction in question was a sale and the exhibition thereof as exchange was not a device but a disguise and thence pre-emptible. We see no reasons to interfere. The petition is hereby dismissed and leave to appeal refused.