ABDUL QAYYUM KHAN Versus ARIF HUSSAIN

ORDER

FAZAL ILAHI KHAN, J.‑‑‑ This is petition for leave to appeal against the judgment of the learned Single Judge of Peshawar High Court, Circuit Bench, Dera Ismail Khan, dated 26‑10‑1994 whereby Civil Revision Petition No.6 of 1994 was accepted, the judgment and decree of the learned District Judge, D.I.K. was set, aside and that of the Trial Court decreeing the respondents' suit for pre‑emption was restored.

2. Facts of the case briefly stated are that on the attestation of Gift Mutation No. 1324 dated 24‑6‑1989 on behalf of Mst. Siraj Bibi respondent in favour of Abdul Qayyum Khan petitioner, in respect of land measuring 445 Kanals, 11 Marlas situated in village Bathiala, Tehsil Kalachi, the respondent/plaintiff alleging that the transaction is sale and not a gift, in assertion of superior right of pre‑emption, filed a suit in the Court of Civil Judge, D.I. Khan. It is worth mentioning that after attestation of gift mutation Abdul Qayyum Khan petitioner No. l donee subsequently transferred 200 Kanals and 9 Marlas of the land in favour of Mst. Shehzadi Bibi (now dead and represented by petitioners) and 187 Kanals to Gulshan Bibi vide Mutations Nos. 1334 and 1335 dated 26‑7‑1989, respectively. The transferee Lien mortgaged the suit property through Mutations Nos.1338 and 1339 dated 28‑8‑1989 with the Agricultural Development Bank of Pakistan by receiving agricultural loan. The petitioners contested the suit denying that there had been any sale in favour of petitioner No. 1 and further stated that conditions of Talabs have not been fulfilled and also denied the superior right of pre‑emption of the respondent/plaintiff. After recording evidence of the parties the learned Trial Judge decreed respondent/plaintiff's suit on 22‑7‑1993, on payment of Rs.56,228.41. Petitioner challenged the judgment and decree of the learned Trial Court and in appeal filed in the Court of District Judge, D.I. Khan, the District Judge was pleased to accept the same, set aside the judgment and decree of the Trial Court on 2‑ fold‑ground; firstly, that the respondent/plaintiff failed to prove that the transaction was that of sale and; secondly, that respondent/plaintiff made "Talab‑e‑Mawatibat" as soon as he came, to know of the transaction, by judgment dated 4‑1‑1994. In the revision, however, the learned High Court persuaded by the contention of the learned counsel for the respondent/plaintiff that petitioner No. l was not related to Mst. Siraj Bibi and that she had 6 minor sons who could not have been deprived of the land by making gift in favour of the petitioner No. 1, found that the transaction in question was that of sale had not gift. However, the learned High Court has referred to the statement of Mst. Siraj Bibi who is stated to be "Pardanasheen" illiterate lady and stated as such: and was persuaded to hold that there was no conscious transaction of gift in favour of petitioner No. 1, set aside the judgment and decree of the learned Appellate Court and restored that of the Trial Court:

3. After hearing the learned counsel for the petitioner and perusal of the record leave is granted to consider; inter alia, whether on facts and circumstances of the case Mst. Siraj Bibi is a 'Pardanasheen' illiterate lady and she had shown her ignorance of the transaction and its nature in respect of a considerable landed property in presence of her minor children, the decree fort pre‑emption can be sustained.

A.A./A‑1414/S Leave granted.