PIR MUHAMMAD KHAN And Others vs AZIZ MUHAMMAD And Other
This matter arises from a petition for leave to appeal against the judgment of the Peshawar High Court upholding the decrees of the lower courts in a pre-emption suit. The core legal question was whether the transaction in dispute was a genuine exchange of land or a sale camouflaged as an exchange to defeat pre-emption rights. The Supreme Court held that the concurrent findings of the lower courts correctly determined the transaction to be a sale based on evidence, including the admission of receipt of consideration by a vendor and the adverse inference drawn from the petitioners' failure to examine the vendor ladies. The petition for leave to appeal was accordingly dismissed. The key principle laid down is that courts may look behind the ostensible form of a land transaction, such as an exchange, to determine its true nature as a sale for the purposes of pre-emption.
- Whether a transaction ostensibly structured as an exchange of land can be treated as a sale for the purpose of a pre-emption suit?
- Does the failure of a party to produce material witnesses in support of their claim of exchange warrant an adverse inference?
- Are concurrent findings of fact by lower courts regarding the true nature of a property transaction open to interference in a petition for leave to appeal?
ORDER
RUSTAM S. SIDHWA, J.--- Pir Muhammad Khan and others seek leave to appeal against the judgment of the Peshawar High Court, Circuit Bench, Abbottabad, dated 2nd July, 1988.
2. By Mutations Nos. 445 and 446 attested on 4th June, 1977, Pir Muhammad Khan and his two brothers petitioners, on one side and Mst. Amir Khanum and Mst. Bibi Maryam respondents Nos.2 and 3, on the other, ostensibly exchanged 2 Kanals and 14 Marlas of their respective lands under the assessm ent of market price shown as Rs.4,000. On 11th August, 1977, a sale mutation in favour of the petitioners was entered by respondents Nos. 2 and 3 in respect of the land previously acquired by them in exchange against the price of Rs.4,000. The Revenue Officer ordered the examination of the two ladies by Local Commissioner, since they were Parda Nashin. It appears that only the statement of Mst. Bibi Maryam was recorded by the Local Commissioner, who admitted to have sold her share to the petitioners and having received the consideration of Rs.4,000. Accordingly, the sale mutation to the extent of her share was attested by the Revenue Officer on 4th February, 1978, showing partial consideration of Rs.1,714 against her name. One Aziz Ahmad respondent No.1 brought a pre--emption suit against the petitioners, alleging that the transaction was basically a sale, but had been camouflaged as an exchange. The suit of respondent No.1 was decreed. The petitioners' appeal and revision both failed on 20th November, 1982 and 2nd July, 1988.
3. On behalf of the petitioners it is submitted that there is gross misreading of the evidence, that there was no evidence to show that any money had passed qua the sale alleged to have been made by respondents Nos.2 and 3 and that the omission on part of the petitioners to produce respondents Nos.2 and 3 to give evidence was not fatal to their case.
4. With the assistance of the learned counsel for the petitioners, we have gone through the evidence. We have no hesitation in coming to the conclusion, as did the three Courts below, that under the guise of an exchange, respondents Nos. 2 and 3 had actually attempted to sell the disputed property to the petitioners. With regard to the submission that no consideration passed for the sale, the endorsement made by the Revenue Officer covering mutation, dated 4th February, 1978, shows that Mst. Bibi Maryam in her statement, which was recorded had admitted that she had received the full sum of Rs.4,000. This shows that sale consideration was received. As regards the last submission of the learned counsel, we fail to see why the petitioners did not care to have the statements of respondents Nos. 2 and 3 recorded, if it really was their case that they had exchanged lands with the said respondents. The fact that the Courts below treated the omission as adversely affecting the petitioners' case appears to be reasonable and fair in the circumstances.
Taking all circumstances into consideration, we see no good grounds for granting leave to appeal in this case. This petition is, therefore, rejected.