BADLA vs KHUDA BAKHSH AND ANOTMR

ORDER

KARAM ELAHEE CHAUHAN, J-- 'The facts of this case are given in detail in the judgments of the Courts below and need not be reiterated here in detail and it will be sufficient for our purpose to mention that the plaintiff respondent's suit for pre-emption regarding the land in dispute stands ultimately decreed by the judgment of the learned District Judge dated 6-9-1961 and of the High Court dated 8-3-1961. The defence taken was that the transaction in dispute was not a sale but an exchange. However, the findings of the above-mentioned two Courts are against the defendant vendee peti--tioner, which were recorded after perusal of all the relevant evidence an other facts and circumstances and it was held that the transaction was sale and not an exchange. This is a finding of fact based on pro appreciation of evidence and though the learned counsel challenged the Same before us but be could not point our any omission or misreading of evidence and nor could he refer to violation of any principle of law warranting interference in that respect, and as such, we feel no ground to interfere with the aforesaid finding and maintain the same.

2. It was then argued that the transaction in hand was given the shape of an exchange because if described as a sale it would have been hit by M. L. R. 64 and 64-A of 1959 and from this point of view also it should not be held as a sole. This point was attended to by the High Court and it was observed that this rather showed that in fact it was a sale though disguised as an exchange. When confronted with this situation learned counsel submitted that the transaction in hand, if considered, as a sale, would be an "invalid sale" in his favour which was not permitted under the aforesaid M. L. Rs. And consequently a suit for preemption of such an "invalid sale" could not have been filed or decreed. However, it may be pointed out that the learned counsel did not refer to any precise provision or aspect of M. L. R. 64 and 64-A of 1959 and nor was any such thing established on the record which might point out any specific invalidity. But be that as it may, if the invalidity as was very meekly suggested was, that after the sale the remaining holding of the vendor would be reduced below the economic or subsistence holding as contemplated in para. 25 of M. L. R. 64, then reference may be made to Manghta Khan and others v. Mst. Hamida Begunt and others PLD1981SC51where at page 55 it was held "Mr. Brohi has, on the other hand,-contended that there is no Justification for importing the bar contained in para. 25 for purpose of deciding the right to pre- empt a sale.". ---."There is considerable force in this argumentcivil Court while deciding a pre- emption suit is not required to testvalidity of the sale on the touchstone of para. 25 of M. L. R. 64 so long a it was not disputed that there was a sale which the plaintiffs sought to pre--empt." In the instant case it has been found that the transaction in dispute did amount to a sale. In that view of the matter and in the face of the above law the point raised by the learned counsel has no merit and is hereby repelled.

3. No other point was raised.

4. The result is that this petition has no merit and is dismissed.