BOSTAN KHAN Versus DAULAT ALI ALIAS KHAN

This is a vendee's second appeal in the pre‑emption suit. By consent Court‑decree, dated 14‑12‑1965 passed in Civil Suit No. 129 of 1965. One Shah Wali transferred 102 Kanals 11‑3/5 Marlas of land with share of Shamilat situate at Mauza Adrana then Tehsil Jhelum to Bostan Khan (hereinafter referred to as appellant) at the sale price of Rs.14,000. Daulat Ali as plaintiff claimed pre‑emption in respect of this sale and filed a suit for recovery of the possession of the land sold, in the Court of Senior Civil Judge, Jhelum, on 14‑12‑1966. Daulat Ali claimed that the transaction embodied in the Court decree was a pre‑emptible sale and that as collateral of the vendor, co‑sharer in the land and owner of the estate, he had a better right. Price paid for the land was also disputed and it was asserted that in reality, land was sold for Rs.5,000 only and the rest of the amount was a mere false show. In defence, it was pleaded that the land was received in compromise (compromise decree) and was not pre‑emptible. It was also pleaded that the suit was barred by limitation; that the market value of the land was more than Rs.14,000 and that the plaintiff had no right of pre‑emption. On 7‑2‑1967, trial Judge formulated as many as 7 issues. These have been correctly given in the impugned judgments and need not be reproduced. Though the trial took place on number of issues, yet the only issue surviving for decision in the second appeal was whether the compromise decree amounted to a sale and was pre‑emptible. This question is covered by issue No.l. Before the aforenoted question is taken up for examination, it is necessary to make a mention of the findings given by the Courts below on various issues. On issue No. 1, Court of first instance, concluded that the transaction was nothing but a sale. In regard to issue No. 2 it was held that the plaintiff had superior right, issue No. 3 was decided against the appellant and in regard to issue No. 4, it was held that the market value of the suit land was Rs.10,954.89, issues Nos. 5, 6 and 7 were conceded by the appellant. On these conclusions, trial Court gave decree to the plaintiff for the land in suit on his paying Rs.10,954.89 by or before 18‑6‑1968 failing which pre‑emption suit was to stand dismissed. Before the appeal Court, the decision on issue No. 1 was only contended. Learned Additional District Judge agreed with the trial Court on the nature of transaction and dismissed the appeal on 30‑1‑1970. Appellant preferred second appeal to this Court. It was admitted to hearing on 27‑2‑1970 and it was observed that the possession of the appellant shall not be disturbed.

2. From the above, only point requiring decision is about the nature of the transaction and its pre‑emptibility.

3. On behalf of the appellant, Raja Muhammad Iqbal, Advocate assisted by Raja Abdul Ghafoor, Advocate contended that the transfer of land by Court decree was not a sale for purposes of pre‑emption law. It was urged that Shah Wali had sold some land inclusive of the land in suit earlier to the filing of Suit No. 129 of 1965 but had neither allowed the mutation of names to take place nor delivered the possession to Bostan Khan vendee. It was in this circumstance that on 22‑4‑1965, the appellant was constrained to bring a civil suit to recover possession of land (137 Kanals 18‑3/5 Marlas) against Shah Wali in the Court of Civil Judge, Jhelum and obtained a consent decree on 14‑12‑1965. Compromise between the parties merely affirmed an earlier sale and consent decree gave effect to it. This being the true nature of transaction, it was not an independent sale which could be made liable pre‑emption. In support of the contention, reference was made to Masih‑ud‑Din v. Matu Ram and others A I R 1920 Lah. 421, Muhammad Ramzan v. Mst. Jantan and 4 others 1983 C L C 1899 and Muhammad Bakhsh v . Zia Ullah and others 1983 S C M R 988.

Raja Dilshad Khan, Advocate for the respondent disputed the correctness of contentions raised on behalf of the appellant and submitted that the consent decree was, in essence, a sale though the assistance of the Court was sought to effectuate the purpose. In support, relied on Bhagta v. Birsingh LXI Indian Cases 331, Abdul Ghafoor v. Muhammad Shafi and another P L D 1966 (W.P.) Lah. 397, Abdul Karim v. Fazal Muhammad Shah P L D 1967 SC 411. It was also submitted by him that there are strong indications in the testimony of the appellant D.W.2 that the land was purchased by him for Rs.14,000. As indicated above, only question is whether the transaction covered by Court decree, dated 14‑12‑1965 was a sale for purposes of pre‑emption law. 'Sale' has not been defined in the Punjab Pre‑emption Act. Section 3(5) of the Act excludes a sale in execution of a decree for money or of an order of a civil, criminal or Revenue Court or a Revenue Officer and also the creation of an occupancy tenancy by a landlord whether it be for consideration or otherwise. Without attempting to define sale, it can be safely said that for purposes of pre‑emption, sale can be taken to be a transfer of ownership rights against payment of price mainly in cash. Section 54 of the Transfer of Property Act does not apply to the territory of Punjab. Except for the application of some sections of the Transfer of Property Act within the municipal limits, provisions of Transfer of Property Act do not apply to territory of Punjab wherein oral sales are permissible and transfer of rights by mutation of names in the revenue papers is a recognized method. Form in which the transaction has been clothed is immaterial. What is material is the real nature of transaction. Therefore, whatever form the parties to the transaction may choose to give to it to suit their own purposes or for purposes of defeating a pre‑emptor's claim, it is always open to the Courts to lift the camouflage and see through the transaction to find out its true character. This right of the Courts is expressly recognized in section 4 of the Punjab Pre‑emption Act, 1913. To determine the nature of transaction and to see whether the Courts below have correctly approached this issue, reference to the evidence adduced in the case becomes necessary. It was not denied that Shah Wali who was owner of the land in dispute was unmarried and was maternal‑uncle of the appellant. On 22‑4‑1965, appellant filed a suit to recover possession of the land measuring 137 Kanals 18‑3/5 Marlas from Shah Wali stating that it had been sold to him at the sale price mentioned in the plaint but declined to deliver its possession. On 14‑12‑1965, parties to the suit reported compromise. Written composition stating the terms was filed in the Court wherein it was stated that decree for land measuring 102 Kanals 11‑3/5 Marlas be passed in favour of appellant against payment of Rs.14,000. In the statement of the appellant recorded by the trial Court, he admitted the written terms of compromise and stated that the suit be decreed in accordance therewith. Shah Wali also consented to the compromise. On the same day, learned Senior Civil Judge decreed the suit in terms of compromise. His order reads 'as per statement of the parties, the plaintiff's suit with regard to the land bearing Khasra numbers 2947, 3034, 3036, 3965, 3197, 3695, 4303, 4309, Khewat No. 346, Khasra Nos. 2750, 3457, 3621, 3641, 3643, 3644, 3645, 3921, 3964, 3973, 4130, 4250, 4251, 6513, Khewat No. 350, Khasra Nos. 229, 2537, 3202, 3458, 3462, 3490, 3544, 3606, 4310, 6208, 6209, 6212, 6214, 6215, 6222, 6224, 3594, 3598 and 3374. Khewat No. 353 situate in the area of village Adrana Tehsil and District Jhelum is dismissed. He is granted a decree for the possession of remaining land in dispute measuring 102 Kanals 11‑3/5 Marlas on payment of Rs.14,000 which amount the defendant had already received. The parties shall bear their costs'. Market value of the land per sale averages was Rs.10,954.89. In regard to the transaction, there is no evidence except the compromise culminating in the consent decree. Independent of the compromise, transfer of land to the appellant is not supported by anything in writing. There is no other convincing evidence available on the present record to indicate that the sale set up in defence was ever made prior to the compromise. Consent decree is nothing but an agreement to which the seal of the Court is superadded, it is not a decision given on merits by the Court. Looked at thus, it is clear to me that through the device of a consent decree, land was sought to be sold by Shah Wali to the appellant against payment of sale price which in no case was less than its market value. This course may have been chosen to save the payment of stamp duty as also to avoid payment of registration charges which in the event of the sale‑deed would have been necessary. Examination of the statement of D.W.2, the appellant himself, visibly demonstrates that the land in suit was purchased by him at the stated consideration. It was a clear case of an oral sale affirmed by a Court‑decree passed in a suit filed for recovery of possession. Decisions in cases of Bhagta, Abdul Ghafoor and Abdul Karim are in point and favour the respondent, whereas those pressed in aid by the appellant's counsel proceed on distinguish able facts and are not helpful to the question involved in the case. In the case under consideration, sale was made by a compromise affirmed by a Court‑decree. There is nothing to indicate that the title of Shah Wali to the land in question suffered from any infirmity. It was not a case of transfer of chose‑in‑action. It was nothing but a clear case of a sale which was liable to pre‑emption. Learned Judges of the Courts below, on review of the evidence oral as well, as documentary also found it to be so and in my view, it is a correct conclusion. Accordingly, I would agree with them, accept) their conclusions and dismiss the appeal with costs.

A. A./B‑47/L Appeal dismissed.