Ch. KIF A Y A T vs Mst. SAKINA and another
This matter arises from a petition directed against the order of the Lahore High Court upholding the dismissal of a pre-emption suit filed by the petitioner for possession of land measuring 51 Marlas. The core legal question concerns whether the transaction in dispute, registered as an exchange, was in fact a sale clothed as an exchange to defeat the petitioner's right of pre-emption. The trial court, the appellate court, and the High Court concurrently found against the petitioner, concluding that the transaction was a genuine exchange and that the petitioner failed to substantiate the payment of consideration. The Supreme Court held that the concurrent findings of fact by the lower courts regarding the nature of the transaction were based on a full appraisal of the evidence and were well-founded. The Court established that where lower courts properly appreciate oral and documentary evidence to determine the true nature of a property transaction, concurrent findings will not be interfered with in the absence of legal infirmity.
- Whether concurrent findings of fact by lower courts regarding the nature of a transaction as an exchange rather than a sale can be interfered with by the Supreme Court?
- Does a disparity in value between exchanged plots alone establish that a sale has been clothed as an exchange?
- What is the effect of reliable oral and documentary evidence supporting a registered exchange deed in a pre-emption suit?
ORDER
' MIAN BURHANUDDIN KHAN, J.-- This petition is directed against the order of Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 18-12-1982 passed in R.S.A. No, 274 of 1982.
2. The relevant facts are that the petitioner filed a suit for possession by pre-emption of land measuring 51 Marlas situate in village Saula, which according to the petitioner, was sold by respondent No,1 to respondent No,2 for Rs,10,000 through a registered deed, dated 4-2-1979 but the transaction was given the colour of exchange with a view to defeat the rights of pre-emption of the petitioner. The learned Civil Judge dismissed the suit of the petitioner vide judgment, dated 20-6- 1982. Appeal filed in the Court of District Judge, Jhelum was also dismissed vide judgment, dated 10-10-1982 and Revision No,274/1982 filed in the High Court was also dismissed vide the impugned judgment passed by a learned Single Judge.
3. Main grounds to assail the judgments and decrees of the Courts below are that the Courts below have relied on the partial and interested evidence produced by the defendants/respondents, and ignored the circumstantial evidence determining the nature of the transaction; that the evidence to the effect that Mst. Sakina was given possession of the exchanged land by defendants/respondents is falsified by the revenue record placed on the file and that the disparity between the value of the plots exchanged one being residential and the other being Banjar Qadeem would alone be enough to establish that the sale had been clothed as exchange.
4. We have perused the judgments of the Courts below and find that the grounds on which the petition is preferred are not well-founded. The Courts below have made full appraisal of the evidence produced by the parties and have come to the conclusion that besides the evidence of the petitioner himself, no other evidence worth reliance has been produced to substantiate the stand that consideration of Rs,10,000 was paid by Mst. Sakina and received by the respondent. On the other hand, Alaf Din Numberdar of the village (D.W.1) produced by the respondent stated' that the respondents had exchanged their lands between themselves and that he was a witness to the registered deed Exh.D.I and had identified the parties before the Sub-Registrar, and Ashiq All D.W.2 also supported the respondents' case. Hence, we find no merit in this petition which is, accordingly, dismissed.