KHALILUR REHMAN vs SHAKOOR AND OTHERS
This matter involves a petition for leave to appeal against a judgment of the Lahore High Court, which had dismissed the petitioner's second appeal in limine. The petitioner had originally filed a suit for possession of agricultural land, claiming a superior right of pre-emption on the basis that a transaction between the respondents, ostensibly labeled as an exchange, was in reality a sale. While the trial court decreed the suit in favor of the petitioner, the District Judge reversed this decision, concluding the transaction was indeed an exchange. The core legal question before the Supreme Court was whether the High Court erred in refusing to interfere with the District Judge's finding of fact regarding the nature of the transaction. The Supreme Court held that the determination of whether a transaction constitutes a sale or an exchange is a question of fact. Finding that the evidence was not misread and that no substantial question of law was raised, the Court upheld the High Court's dismissal, affirming that findings of fact by the first appellate court are generally immune from interference in second appeal absent misreading of evidence.
- Is the determination of whether a transaction constitutes a sale or an exchange a question of fact?
- Can a High Court interfere with a finding of fact in a second appeal if there is no misreading of evidence?
ORDER
1. ' NASIM HASAN SHAH, 3.-Respondents Nos. 1 and 2 transferred 3 kanals and 19 marlas of agricultural land to Abdul Ghafoor and Ghulam Haider, respondents Nos. 1, 3 and 4. Describing this transaction to be an exchange with their land measuring 5 kanals, 14 marlas. The petitioner contending that this transaction was in reality a sale, but disguised as an exchange, brought a suit for possession for the above-mentioned 3 kanals, 19 marlas of land claiming superior right of pre-emption. This suit was resisted by Abdul Ghafoor and Ghulam Haider, respondents Nos. 3 and 4, and the main issue was whether the transaction was a sale or an exchange.
2. ' The learned trial Judge decreed the suit of the petitioner holding that the transaction in dispute was, in fact, a sale and that the petitioner had a superior right to pre-emption. This finding was challenged by respondents Nos. 3 and 4 in an appeal before the District Judge on the ground that the transaction in dispute was not a sale and in fact, was an exchange. The learned District Judge vide his judgment dated 3rd January, 1974 reversed the findings of the trial Judge holding that the transaction was, in fact, a exchange and not a sale and the decree and judgment of the trial Court was set aside. The petitioner preferred a second appeal in the High Court (R. S. A. No, 21 of 1974), which was dismissed in limine by a learned Single Judge of the Lahore High Court by his order dated 16th May, 1974 on the reasoning that since the question as to whether the transaction was a sale or exchange was decided on the basis of the evidence on record which evidence had not been misread and since no other question of law has been raised the appeal was not competent.
3. The question whether the transaction was, in fact, a sale or a exchange is, a question of fact and the learned District Judge has after careful consideration of all the relevant facts to the conclusion that the transaction was, indeed, an exchange. This is a finding of fact and the High Court rightly did not interfere with it in the absence of any misreading of the evidence and the existence of any question of law. No ground for interference by this Court, therefore, arises in the present proceedings.
4. ' This petition must, therefore, fail and is dismissed hereby.