MAROOF KHAN Versus DAMSAZ KHAN

This Civil Revision under section 115, C.P.C. calls in question the judgment and decree dated 27-11-1988 of the learned Additional District Judge, Bannu dismissing the appeal filed by the petitioners against the judgment and decree of the learned Civil Judge, Bannu, dated 20-1-1986.

2. The facts in brief are that Muhammad Nazif Khan, Mst. Khanmira and Mst. Parwarjana co-owners in Khasra No.1180 measuring 15 Kanals 15 Marlas situated in village Khujari Khas entered into sale and exchange transaction with Maroof Khan, Qamar Zaman and Qamar Ali petitioners herein. The two ladies, respondents Nos.3 and 4 herein sold 1 Kanal and 2 Marlas out of 5/72 shares in Khasra No.1180 to the petitioners vide Mutation No.15601 attested on 13-1-1983. Muhammad Nazif Khan their brother-respondent No.2 herein exchanged 35/648 shares measuring 17 Marlas out of the same Khasra number with petitioners 1 to 3 herein and obtained from them 17 Marlas of land in Khasra No. 1079 measuring 3 Kanals 3 Marlas and to that effect Mutation Nos.15~99 and 15600 were attested on 13-1-1983. Damsaz Khan, plaintiff-respondent No.1 herein instituted a suit in the Court of Senior Civil Judge, Bannu against the petitioner herein for possession of 1 Kanal 19 Marlas by pre-emption on the grounds of co-sharer ship, contiguous owner and participator in immunities and appendages. It was averred in the plaint that the entire transaction on the basis of the aforesaid three mutations was that of sale and that the transaction through Mutation No.15519 was given the colour of exchange to defeat his rights of pre-emption. He challenged the sale amount of Rs.15,000 as fictitious and prayed for the decree for possession of the land by pre-emption on payment of Rs.5,000.

3. Oamar Ali Khan, petitioner No.4 herein, was not impleaded as party to the suit and subsequently on the application of Damsaz Khan plaintiff-respondent No.1 herein he was impleaded as defendant in the suit.

4. The suit was contested by the defendants-petitioners mainly on the ground that the transaction vide Mutation No.15599 was that of exchange and not sale. Pleas of limitation and partial pre-emption were also raised. The suit land was claimed to have been purchased for Rs.15,000.

5. The trial Court framed the following issues from the pleadings of the parties: --

(1) Whether the suit is partial and liable to be dismissed? O.P.D.

(2) Whether the suit is bad for non-joinder of necessary parties? O.P.D.

(3) Whether the plaintiff has a cause of action? O.P.P.

(4) Whether the suit is within time? O.P.P.

(5) Whether the plaintiff has performed an active role in the sale and hence is estopped to sue? O.P.D.

(6) Whether the suit of the plaintiff is bad for misjoinder of causes of action? O.P.D.

(7) Whether the suit Mutation No.15599 attested on 26-12-1982 is sale and has been given the garb of exchange to defeat the pre-emptive rights of the plaintiff?

(8) Whether the plaintiff has a superior right of pre-emption? O.P.P

(9) Whether the sale consideration has been fixed in good faith and actually paid in suit Mutation No.15601 attested on 26-12-1982? O.P.D.

(10) What is the market value? O.P.P.

(11) Whether the plaintiff is entitled to the decree as prayed for? O.P.P,

(12) Relief.

Note .-- The date of attestation of Mutations Nos.15599, 15601 is wrongly mentioned as 26-12-1982. These mutations were attested on 13-1-1983.

6. The trial Court recorded evidence of the parties which they wished and then on the basis of evidence and arguments addressed decided issues 1, 2, 3 and 4 in plaintiffs favour. The transaction was held to be that of sale and issue No.7 was decided in the affirmative, plaintiffs' superior right was found to have been proved and issue No.8 was decided in his favour. The price of land was fixed at Rs.5,048 on the basis of five-yearly average. The suit was decreed in favour of plaintiff-respondent No.l vide judgment dated 20-1-1986.

7. Dissatisfied from the aforesaid judgment and decree of the trial Court, the defendants-petitioners herein filed an appeal before the learned District Judge, Bannu. During the pendency of appeal, N.W.F.P. Pre-emption Act, 1987 was enforced on 26-4-1987. The learned District Judge vide judgment dated 5-9-1987 accepted the appeal and dismissed the suit under section 35(3) of the Act ibid. Damsaz Khan plaintiff-respondent No.1 felt aggrieved and filed a revision petition which came up for hearing before Muhammad Ishaq Khan (Judge) as he then was, who vide judgment, dated 18-4-1988 accepted the revision, set aside the judgment of the appellate Court and remanded the case to the Court for deciding appeal on merits. In doing so reliance was placed on the judgment recorded by Justice Fazal Elahi Khan in Civil Revision No.42 of 1987 (Sultan Ali v. Muqaddar Shah), wherein it is held that rights and privileges accrued to the vendee before the new law could not be taken away retrospectively. After remand, the issues raised before the learned Additional District Judge, Bannu were about the nature of transaction and that of limitation. On the nature of transaction, the learned Additional District Judge concurred with the finding of the trial Court that the transaction was of exchange and not of sale. On the issue of limitation, learned Additional District Judge held that since plaintiff-respondent No.1 had submitted application on 3-3-1984 for impleadment of Qamar Ali Khan as defendant in the suit which was accepted on 31-3-1984 therefore, the suit was within time and was not bad for partial pre-emption. On the basis of these findings the learned Appellate Court vide judgment, dated 27-11-1988 dismissed the appeal. The defendants-petitioners have now come in revision assailing the judgments and decrees of the Courts below.

8. S. Zafar Abbas Zaidi, Advocate for the defendants-petitioners before addressing arguments on merits of the case raised a law point that appeal after the remand stood abated under the provisions of subsection (3) of section 35 of the N.-W.F.P. Pre-emption Act, 1987 (Act X of 1987). It was contended by him that since the judgments and decrees passed by the Courts below had not become final as provided under subsection (2) of section 35 of the Act and appeal was pending in the Appellate Court, therefore, it lapsed under subsection (3) of section 35 of the Act.

9. Mr. Muhammad lqba1 Khan Kundi, learned counsel for the respondents in reply referred to the case of Sardar Ali P L D 1988 SC 287 to meet the legal objection raised by the learned counsel for the petitioner.

10. In the case of Kundal Khan v. Agha Jan P L D 1990 Pesh. 21 similar point as raised in this revision is discussed, it has been held as under: --

"In subsection (3) of section 35 of the Pre-emption Act, 1987 it is provided that all other cases and appeals not covered under subsection (2) and instituted under the Act XIV of 1950 pending before a Court shall lapse and suits of pre-emptors shall stand dismissed except those in which right of pre-emption is claimed under the provisions of Act (X of 1987). Again the words `cases' and `appeals' have been inserted in this subsection and they have been held as abated except those in which the right of pre-emption is claimed on the grounds mentioned in section 6 of the Pre-emption Act, 1987."

The rule laid down in Kundal Khan's case has not been approved by the Supreme Court in Civil Appeal No.103 of 1984 titled Jehandad Khan v. Raza Muhammad Khan decided on 30-10-1990. The relevant observations made on that behalf are as follows: --

"Another judgment of the Peshawar High Court has been brought to our notice in another case. It is Kundal Khan v. Agha Jan P L D 1990 Pesh. 21.. This, it seems, was rendered by the said Court during the period that there was some conflict of authority as noted above, in the Supreme Court judgments; and this judgment by the Peshawar High Court was rendered to follow the then judgment in the case of Ahmad v. Abdul Aziz P L D 1989 SC 771; which remained in the field during that period. But in the meanwhile as already mentioned the original position having been restored in so far as the present appeal is concerned, the judgment which would govern it is in the case of Mst. Lobia Jan v. Roghan Shah P L D 1989 Pesh. 174 which was upheld and affirmed in the subsequent two cases Haji Abdul Hakim and Mst. Safia Begum."

It, therefore, follows that now the case of Mst. Lobia Jan will govern the field. While dealing with the provisions .of section 35 of the Act in Mst. Lobia Jan's case, it was held as under: --

'Section 35 of the Act (X of 1987) deals with the pending cases and appeals filed under the repealed law. However, it has drawn a distinction in cases in which decrees have been passed before the enforcement of the new law, or for the purpose of the present controversy before 31-7-1986 and those cases which were pending before the trial Court on 31-7-1986 and in which decrees were not yet passed. In the former cases further proceedings were to be taken under the repealed law while the latter cases were to lapse and suits of the pre-emptors were to be dismissed except those in which right of pre-emption is claimed under the provisions of this Act."

11. Thus the matter now stands settled, at least for the time being. The cases Vending before the trial Court on 31-7-1986 in which deer PC were not vet nacced would lapse and those m which decrees were passed, before 31-7-1986 the proceedings will be taken under the repealed law. The Shariat Appellate Bench of '4 the Supreme Court in Suo Motu Shariat Review Petition No.1-R of 1989: P L D 1990 SC 865 has held that after 31-7-1986 requirements of Talabs are the sine qua-non for filing of the pre-emption suits. The august Supreme Court in the case of Muhammad Yaseen v. Khan Muhammad P L D 1990 SC 1060 has observed that there was no need to refer to any other judgment on the subject because the judgment dated 26-5-1990 passed in suo motu Shariat review petition holds the field. The same view has been taken by the Supreme Court in the case of Mubarik Khan v. Ali Rehman 1991 S C M R 470.

12. Article 189 of the Constitution of Islamic Republic of Pakistan, 1973 makes the decision of the Supreme Court binding on all other Courts in Pakistan. Article 189 reads as under: --

"Any decision of the Supreme Court shall to the extent that it decides a question of law or is based upon or enunciates a principle of law, be s binding on all other Courts in Pakistan."

The decision in suo motu Shariat review petition followed by the Supreme Court is, therefore, binding on all other Courts in Pakistan. The above, in my opinion, provides answer to the arguments of the learned counsel for the petitioner. The instant pre-emption suit was decreed before 31-7-1986 by the lower Court and the mere fact that appeal was pending when the new law came into force would not abate the suit, or appeal.

13. On factual aspect of the case, learned counsel for the petitioners contended that the exchange is a legal device permissible under the law and the mere fact that the possession of the lands was not delivered the transaction will not become sale. Learned counsel for the petitioners further contended that it was for the plaintiff-respondent No-1 to prove that transaction was that of sale and not exchange. In his opinion the suit was bad for partial pre-emption and was also time-barred inasmuch as Qamar Ali one of the vendors was impleaded as " party to the suit after the period of limitation prescribed for pre-emption suits. In support of his aforesaid contentions following case-law was cited:

(1) 1972SCMR649,

(2) P L D 1983 Posh. 13 and 205,

(3) P L D 1984 Posh. 166,

(4) P L D 1986 Posh. 109,

(5) 1990 C L C 1679 and

(6) P L D 1982 SC 17.

14. Learned counsel for the respondents on the contrary supported the judgments and decrees passed by the lower Courts and argued that the same are based on the correct appreciation of evidence requiring no interference in revision.

15. Section 4 of the N.W.F.P. Pre-emption Act, 1950 empowers the Courts to declare an alienation purporting to be other than a sale as a sale. The Courts have been doing so in view of the facts and circumstances of each case. In the instant case the two Courts have arrived at the concurrent finding of fact that the transaction in dispute is a sale. In revision under section 115, C.P.C., the High Court will interfere only if it is shown that the Courts have failed to exercise jurisdiction vested in them by law or exercised jurisdiction not so vested or in the exercise of jurisdiction have committed illegalities or material irregularities, or that the findings arrived at are the result of misreading or non-reading of evidence. There is no such thing as above in this case. I have found that the evidence consists of the statements of the parties, and nothing more. The two Courts are of the view that the transaction on the basis of Mutation Nos.15599 was part of the sale transaction because Mutation. Nos.15600 and 15601 were attested on the same day. The view taken is in accord with the evidence. The transaction in favour of the petitioners was made by the brothers and sisters and in the facts and circumstances of the case it appear to be disguise rather than a device. Resort to device is permissible under the law but not the disguise. In the case P L D 1960 Lab. 461 relied in Amir Nawaz Khan v. Nawab Khan P L D 1983 Posh. 205 it is held that: --

"There is a difference between a device and disguise. A sale, for instance, may be disguised as a mortgage or Hiba-bit-Iwaz. When this is done, evidence can be led to reveal the real nature of the transaction by taking off the mask from the face of the transaction, so that the Court may discover whether the right of pre-emption has been successfully eluded or not. This, however, does not mean that a legitimate device becomes a disguise merely because the object is to defeat the right of pre-emption. The essential difference between a disguise and device is that a disguise is utilised to hide the reality by a counterfeit appearance. A false exterior is given to conceal the inner reality. In a device, the appearance is not false but a method is invented or adopted to evade the ordinary or normal consequences of a situation and thus to achieve an object. In a device, there is always a scheme, a design or a stratagem which is real and not false."

16. The conclusion, therefore, is that the scheme or design should always be real and not false. The facts and circumstances of the case are such that no other conclusion can be arrived at except the one arrived at by the Courts below. Since the transferor has not appeared as a witness the presumption would be that he was not supporting the defendants-petitioners. The case-law cited by the learned counsel for the petitioners is distinguishable in view of the facts of the present case. In Kanwal Nain v. Fateh Khan P L D 1983 SC 53 it is held that the revisional powers are primarily intended for correcting errors made by the subordinate Courts in exercise of jurisdiction and that even erroneous decisions of facts are not revisable except when the same are based on no evidence or inadmissible evidence or is so perverse as to cause great injustice. This dictum in Kanwal Nain's case was followed in Sheikh Muhammad v. Asmat Sultana 1989 S C M R 34.1 am, therefore, of the view that the concurrent findings of fact of the two Courts below that the transaction is a sale and not exchange is based on correct appreciation of evidence calling for no interference under section 115, C.P.C. Same can be said about the concurrent findings of fact and law of the two Courts on issue of limitation and partial pre-emption. Qamar Ali Khan, defendant-petitioner No.4 herein was no doubt arrayed as defendant after one year of the institution of the suit, but plaintiff-respondent No.1 should not suffer for the act of the Court because he submitted application for impleadment of Qamar Ali within time.

17. For the foregoing reasons this revision petition being devoid of any merit is, therefore, dismissed. Parties to bear their own costs.

AA./1258/P Revision dismissed.