ATA MUHAMMAD KHAN vs Mst. KHANZADA
This petition for leave to appeal arose from a pre-emption suit concerning agricultural land in Mauzia Fazilpur, District Dera Ghazi Khan. The core legal question was whether the underlying transaction between the parties constituted a sale, which is subject to the right of pre-emption, or an exchange, which is not. The trial court initially characterized the transaction as an exchange, but the District Judge reversed this finding on appeal, determining it was a sale. The High Court upheld this decision in second appeal after re-examining the evidence. The Supreme Court dismissed the petition, affirming the concurrent findings of the lower courts. The Court held that the determination of whether a transaction is a sale or an exchange is primarily a question of fact. It further established that factors such as significant disparities in the area of land exchanged, the relative locations of the properties, the failure of the vendor to take possession of the exchanged land, and the vendor's ignorance regarding co-sharers are critical indicators supporting the classification of a transaction as a sale.
- Is the determination of whether a transaction constitutes a sale or an exchange primarily a question of fact?
- Can a court in second appeal re-examine evidence to determine the nature of a transaction?
- What factors are relevant in distinguishing a sale from an exchange in the context of pre-emption suits?
ORDER
1. ANWARUL HAQ, J.--This petition seeks leave to appeal against the judgment of the Lahore High Court dated the 11th of February 1975 in a second appeal arising out of a pre-emption suit instituted by the respondent Mst. Khanzadi against the petitioner in respect of an area of agricultural land situate in Mauzia Fazilpur in district Dora Ghazi Khan.
2. The suit was contested by the vendee on the ground that the transac--tion was one of exchange and not of sale. This plea found favour with the trial Court, which accordingly dismissed the suit on 23-7-1959. This finding was, however, reversed in first appeal by the learned District Judge, Dera Ghazi Khan, by his judgment dated the 20th of April 1960 holding that the surrounding circumstances of the transaction clearly showed that it was a sale and not an exchange. This judgment and decree of the learned District Judge has been upheld in second appeal by the High Court, although for somewhat different reasons. The High Court has itself gone through the relevant evidence and come to the conclusion that the transaction was indeed a sale and, therefore, pre- emptible.
3. It is submitted on behalf of the petitioner that the High Court has misread the relevant evidence in coming to the conclusion that the transaction amounted to a sale. In support of this submission the learned counsel has drawn our attention to the various reasons given by the High Court and has endeavoured to argue that the reasons are not sustainable on the record.
4. We regret we are not at all impressed by the submissions made by the learned counsel for the petitioner. It will be noticed that the question whether a particular transaction is one of sale or exchange, is primarily a question of fact. In the instant case, we have the concurrent findings of the learned District Judge and the High Court to the effect that the, transaction amounted to a sale and not an exchange, It is true that the High Court has itself examined the relevant evidence before upholding the finding recorded by the learned District Judge in First Appeal. We' have not been able to discover any misreading of the relevant evidence in.: this behalf. All the circumstances noticed by the High Court were directly relevant to the question in issue, particularly the disparity between' the area alienated by the vendor and the one said to have been given in exchange by the present petitioner, as well as the respective locations of the two areas. It may be stated that the petitioner obtained 64 kanals and 12 marlas of land in exchange for nearly 34 kanals of his own land. It was also found that the land in suit was situated near the town of Fazilpur as compared to the area said to have been handed over to the vendor. The High Court also took note of the tact that the vendor had not even obtained possession of the land given to him in exchange, nor did he know the names of his co-sharers in the new Khata. We consider that on the basis of this evidence, and in the light of the circumstances, the Courts below were right in taking the view that this was in reality a transaction of Rate and not of exchange the petition, therefore, fails and is hereby dismissed.
Cited by 4 cases
- Mst. MIRAJ BIBI vs Mst. AZIM KHATOON And Other 1997 SCMR 1892
- Raja MUHAMMAD SIDDIQUE vs ABDUR RAHMAN 1997 CLC 1819
- GHULAM HUSSAIN Through Legal Heirs vs Mst. MIRAJ BIBI 1995 MLD 435
- KHAN MUHAMMAD AND ANOTHER vs MIR ZAMAN 1986 PLD Peshawar 109