ELAHEE BUKSH SHAH vs ALLAH BUKSH AND ANOTHER
The petitioner instituted a pre-emption suit claiming that the vendor Ahmad Ali had executed a deed of exchange instead of a sale deed to defeat the petitioner's right of pre-emption. The trial court decreed the suit, but the District Judge reversed the decision on appeal and dismissed the suit, holding the transaction to be a genuine exchange. The Lahore High Court dismissed the petitioner's second appeal, finding the matter concluded by a finding of fact. The petitioner sought special leave to appeal before the Supreme Court of Pakistan. The core legal question was whether the transaction in question constituted a sale or an exchange. The Supreme Court held that the lower appellate court was fully competent to appreciate the evidence and conclude that the transaction was an exchange based on the registered exchange deed and admissions in cross-examination. The petition was dismissed in limine, affirming that a finding of fact regarding the nature of a transaction by the appellate court cannot be interfered with in second appeal.
- Whether a transaction structured as a deed of exchange constitutes a sale for the purpose of a pre-emption suit?
- Is the finding of fact by a first appellate court regarding the nature of a transaction binding in second appeal?
- Does an appellate court have the competence to prefer one set of evidence over another when determining whether a transaction was a sale or an exchange?
ORDER
1. ABDUL KADIR SHAIKH, J.---Facts briefly stated are that the petitioner filed a pre-emption suit against the respondents in which he asserted that Ahmad Ali, the vendor, had in fact sold the suit land, but in order to defeat petitioner's right of pre-emption, he had instead executed a deed of exchange. The trial Judge decreed the suit in petitioner's favour but on appeal at respondents' instance, the District Judge, Dera Ghazi Khan reversed the findings of the Judge and allowed the appeal and in result dismissed the suit. Petitioner's Second Appeal failed in the Lahore High Court and he now seeks special leave to appeal.
2. Mr. Muhammad Nazar Khan, learned counsel for the petitioner submits that the learned District Judge has wrongly discarded certain pieces of evidence including the evidence of Ahmad Ali, the vendor, to the effect that be bad sold the suit land.
3. The pivotal point for consideration is whether the transaction in question was a sale or an exchange.. The vendor Ahmad Ali no doubt stated at one stage that he had sold the land but in the cross-examination he admitted the execution of the exchange deed and also that he was given certain land as the consideration for the sale exchange. The deed of exchange was duly registered.
4. It was within the full competence of the learned District Judge as an Appellate Court to believe one set of evidence as against the other and the High Court therefore very rightly dismissed the Second Appeal filed by the petitioner on the ground that "the matter whether the transaction was an exchange is concluded by a finding of fact".
5. On the facts of the case no exception in law can be taken with the judg--ment of the High Court.
6. The petition is dismissed in limine.