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Petitioner: FAQIR MUHAMMAD and others VS Respondent: JUMA KHAN and others
Court Name: Peshawar High Court Judge(s): Shah Zaman Babar Title: FAQIR MUHAMMAD and others vs JUMA KHAN and others Case No.:Regular Second Appeal No. 312 of 1968 R.S.A. No. 312 of 1968 R.S.A. No. 105 of
JUDGMENT
Reported As: 1987 CLC 872 Result: Order accordingly Judgment JUDGMENT ' This judgment will dispose of the plaintiffs' Second Appeal No. 312 of 1968 and the defendant's Second Appeal No. 105 of 1969 as they have arisen out of a common judgment. 2. Mst. Shama, wife of Sarbiland Khan was entered as owner of half share and Mst. Mumtaz Begum widow, Muhammad Afzal Khan, Muhammad Humayun Khan, Muhammad Zafar Khan sons and Mst. Yasmin and Mst. Sherin daughters of late Muhammad Safdar Khan, were entered as owners of the remaining half of Khasras Nos. 857, 858 and 859, measuring 39 Kanals 3 Marlas in Khata No. 29/51 in Garbi Ismailzai, Tehsil and District Mardan, in the Jamabandi of the year 1965-66, copy Exh.P.W.1/1. Mst. Shama and Mst. Mumtaz Begum and other heirs of Muhammad Safdar Khan were also owners in equal shares in Khasra Nos. 855 and 860, measuring 11 Kanals 19 Marlas in Khata No. 29/52 of the same Jamabandi. The total area of Khata No. 29/51-52 is 51 Kanals 2 Marlas. Mst. Mumtaz Begum and other heirs of Khan Bahadur Muhammad Safdar Khan were owners of half share in Khasra Nos. 853, 854, 856, 861 and 863/1 of total area measuring 22 Kanals 10 Marlas in Khata No. 98/169 of the same Jamabandi. Mst. Mumtaz Begum and other heirs of Muhammad Safdar Khan were thus owners of 36 Kanals 16 Marlas in the two Khatas viz. 29/51-52 and Khata No. 98/169. Aks Shajra Kishtawar, copy Exh.P.W.1/2, shows that all the Khasra numbers comprising the two Khatas, referred to above, formed one compact block and parcel of the land. According to the column of Lagan of the Jamabandi copy Exh.P.W.1/1, Juma Khan is recorded lessee for Khasras Nos. 857, 858 and 859 for a period of five years commencing from Kharif 1961. In the same Jamabandi, the remaining Khasras Nos. Of the two Khatas are shown cultivated by Sarbiland Khan son of Ghulam Haider Khan. The Girdawari of Kharif 1966 done on 17-10-1966 repeats the same entries with regard to all
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the field numbers. In the Girdawari of Rabi 1967, done on 3-4-1967, Khasra Nos. 857, 858 and 859 are shown in possession of Jumma Khan to the extent of half, Sherin and Rekhmeen sons of Mashal Din to the extent of half on account of Badal. The remaining Khasras Nos. Are again shown in cultivating possession of Sarbiland Khan in Rabi. 1967. 3. Mst. Mumtaz Begum alias Mumtaz Safdar, widow of Khan Bahadur, Muhammad Safdar Khan herself and in the capacity of attorney on behalf of her three sons and two daughters sold an area of 36 Kanals alongwith share of Shamilat out of Khasras Nos. 857, 858, 859, 855, 860, 853, 851, 856, 861 and 863/1, entered in Khata Nos. 29/51-52 and 98/169 of the Jamabandi of the year 1965-66 to Jumma Khan half, Sherin and Rekhmeen sons of Mashal Din, half, for an ostensible price of Rs.27,000 on the basis of sale-deed executed and registered on 7-2-1967. Copy Exh.D.W.1/1. The scribe entered this deed in his register at serial No. 108. By another deed copy Exh.D.W.1/2, purporting to be an exchange-deed, Mst. Mumtaz Begum herself and as attorney of her five children transferred 16 Marlas out of two Khatas and Khasras numbers referred to in the sale-deed to Jumma Khan, Sherin Khan and Rekhmeen in lieu of the letters' 16 Marlas out of Khasra No. 4128 in Khata No. 912/1762 and Khasra No. 4175 in Khata No. 554/1021 of the Jamabandi of the year 1965-66. This deed was executed and registered on 7-2- 1967. This deed was entered by the scribe in his register at serial No. 107. Fateh Muhammad Khan and Muhammad Anwar Khan are attesting wintesses of both the deeds. Sang-in Khan and Syed Jaffar Shah identified the executants of both the deeds at the time of presentation of the two deeds before the sub-registrar on 7-2-1967. The sale-deed was presented at 1-30 p.m. While the deed purporting to be an exchange deed was presented at 2 p.m. 4. On 21-2-1967 Mst. Shamma wife of Sarbiland of Garhi Ismailzai instituted the present suit for possession by pre-emption against Jumma Khan, Sherin and Rekhmeen vendees. The vendors were also arrayed as defendants. The suit pertained to the area of 36 Kanals 16 Marlas out of Khasra Nos. 857, 858, 859, 855, 860, 853, 854. 856, 861 and 863 of Khatas Nos. 29/51-52 and 98/169 of the Jamabandi of the year 1965-66 situate in Garhi Ismailzal, Tehsil and District Mardan, alongwith share of Shamilat and other rights. In the plaint the plaintiff averred that the vendees- defendants Nos. 1 to 3 purchased the suit land from the vendors-defendants Nos. 4 to 9 on the basis of sale-deed, dated 7-2-1967 for a price of Rs.2,000 but for the purpose of defeating her right of pre-emption the following acts were committed:- (a) That on the date and time at which the sale-deed was entered and registered, a fictitious exchange deed was executed and registered betweeen the parties with respect to 16 Marlas. That in fact it was one transaction but it was separated in two parts and sale of 16 Marlas was given the colour of exchange, and that in fact the entire suit land measuring 36 Kanals 16 Marlas has been sold and the sale consideration for the entire land had been paid at one time. (b) That the sale consideration for the sale in question has been shown as Rs.27,000 but in fact the entire land was sold for Rs.2.000. The plaintiff claimed preferential right of pre-emption against the defendant-vendees on the ground of co-sharership in the Khatas, participator in the immunities and appendages and owning contiguous land. 5. The suit was contested by the vendees-defendants Nos. 1 to 3. Mst. Shama plaintiff died during the pendency of the suit and her legal representatives namely Faqir Muhammad Khan and others were substituted as plaintiffs. The suit was consigned to record room on 21-12-1967, but it was restored on the application, dated 15-2-1968. As many as 12 issues were framed, but in the present appeals, the findings on issues Nos.1, 5, 8, 9 and 11 are contested. These issues are:- (1) Is this suit bad for partial pre-emption? (5) Is the transaction regarding sixteen Marlas sale as well?
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(8) Has the plaintiff superior right of pre-emption? (9) Have defendants Nos. 1 to 3 made any improvements in the suit land and are they entitled to any compensation. If so, to what amount? (11) What amount was paid or fixed as the sale price? 6. The suit was tried by the Senior Civil Judge, Mardan. After discussion of the evidence of the parties and their witnesses and the circumstances of the case, the learned trial Judge came to the conclusion that the two transactions executed between the parties, deed copies Exh.D.W.1/1 and D.W.1/2 in reality form one and the same transaction and that the defendants-vendees have purchased the 16 Marlas also alongwith the purchases of 36 Kanals. The learned trial Judge discussed issues Nos. 8 and 11 together. He held that the plaintiffs were co-sharers in Khata No. 29/51-52, but they were not co-owners in Khata No. 98/169. The vendees were not co-sharers in either Khatas. He, therefore, observed that the plaintiff has superior right of pre-emption in respect of Khata No. 20/51-52 comprised of Khasras Nos. 857, 858, 859, 855 and 860. He further observed, on the basis of Aks Shajra Kishtwar Exh.P.W.1/2, that plaintiff's fields in Khata No. 29/51-52 are contiguous with Khasras Nos. 854, 856 and 861 in Khata No. 98/160 but not with Khasra Nos. 863 and 863 (863/1) in the same Khata. He further observed that the defendants-vendees would as such have equal right of pre-emption because of their indefeasible right of co-ownership in Khasras Nos. 853 and 853/1. Discussing issue No.1, it was observed that the plaintiff-pre-emptor having not been proved to have a right of pre-emption with respect to Khasra No. 863/1, the suit of the plaintiff will not suffer from the fatal defect of partial pre-emption for non-inclusion of this Khasra in the plaint. Discussing issues Nos. 11 and 10, it was held that the sum of Rs.27,000 had been paid for the entire land in suit. Discussing issue No. 9, it was observed that no improvements in the suit land had been proved after the sale and that the alleged improvements effected before the sale had in fact been taken into consideration at the time of fixation of the sale price by the contracting parties. In conclusion, the learned trial Court granted plaintiffs a decree for possession by pre-emption for 25 Kanals 11 Marlas out of the suit land in Khata No. 29/51-52 comprised of field Nos. 857, 858, 859, 855 and 860 on payment of Rs.19,004. Plaintiffs suit with respect to the remaining suit land in Khata No. 98/169 comprised of Khasras Nos. 853, 854, 865, 861 and 863/1 was dismissed by the judgment, dated 17-7-1968. Parties were left to bear their own costs. 7. The plaintiffs preferred appeal with regard to the dismissal of their suit in respect of the land in Khata No. 98/169. They also questioned the market value determined by the lower Court. The defendant-vendees also went in appeal. They prayed for the dismissal of the plaintiffs' suit with regard to the land in Khata No. 29/51-52. Both the appeals failed and were dismissed by the Additional District Judge, Mardan, by judgment, dated 23-11-1968. Parties were ordered to bear their own costs in both the appeals. 8. The plaintiffs in their second appeal have prayed for the grant of decree for the suit land in Khata No. 98/169. The defendants also preferred second appeal. They have prayed for the dismissal of the plaintiffs' suit with regard to the land in Khata No. 29/51-52. 9. Mr. Samiullah Jan, learned counsel for the defendants-appellants argued that the plaintiffs' suit for pre-emption is hit by the doctrine of partial pre-emption for the reason that they have not included Khasra No. 863/1 in the plaint. The argument though attractive is without any foundation. The defendant-vendees have, according to the sale-deed, besides other Khasras Nos. Purchased Khasra No. 863/1. The plaintiffs have sued for possession by pre-emption of land total area of which is 36 Kanals 16 Marlas. The part of the land purchased out of the Khasra No. 863/1 measuring 6 Kanals 4 Marlas is included in the entire area of 30 Kanals 16 Marlas which is the subject-matter of the suit. The plaintiff (or plaintiffs) had inadvertently described Khasra No. 863/1 as Khasra No. 863 in the plaint. The mere misdescription of this Khasra number will, therefore, not affect the suit so as to suffer from the defect of partial pre-emption. It is settled law that the right of pre-emption is in
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essence, one of substitution and not of re-purchase. The pre-emptor, therefore, is bound to take the place of vendee or vendees in the original contract. He must take over the whole bargain. The pre-emptor must seek the pre-emption of the whole of the subject-matter of the sale and pay the entire price paid by the vendees as consideration See Malik Hussain and others v. Lal Ram Chand and others PLD 1970 SC 299; Samarqand and another v. Muhammad Yunas PLD 1972 Pesh. 115 and Ghulam Muhammad and 3 others v. Khushi Muhammad and another PLD 1973 SC 444. ' I am, therefore, of the view that the plaintiffs' suit does not suffer from the fatal defect of partial pre-emption. ' The learned counsel for the defendants-appellants next argued that the defendants-appellants, on the basis of the exchange deed (copy Exh.P.W.1) have secured a right of pre-emption at par with the plaintiffs that the transactions of the deed Exh.D.W.1/2 is in reality a separate transaction than the sale-deed, copy Exh.D.W.1/1, and that the Courts below have erred in holding that the two transactions are in fact one and the same transactions of sale. To appreciate the contentions, the re-appraisal of the pleadings of the parties, contents of the two documents, and the evidence of the parties and their witnesses would be highly beneficial. The plaintiff (or plaintiffs) has averred in the plaint that the transaction of the two deeds are in fact one transaction of sale of the suit area measuring 36 Kanals 16 Marlas, and that the deed purporting to be an exchange for 16 Marlas out of the suit land is a fictitious deed. In reply to this averment in the plaint the three vendees have pleaded in their joint written statement that even if, according to the plaintiff the two transactions are one transaction then in that case the sale consideration for the entire area of 36 Kanals 16 Marlas has been paid not only in money but also by alienation of land. And, therefore, the transaction cannot be called a sale. The deed Exh.D.W.1/2 has been entered in the register at serial No. 107 and in the deed Exh.D.W.1/1 it has been entered at serial No. 108. By the deed Exh.D.W.1/1 the vendors purport to alienate 16 Marlas out of the suit Khasra numbers to the defendant-vendees. Mst. Mumtaz Begum alias Mumtaz Safdar, the executant of this deed alleged in it that she is authorised to transfer the area on the basis of the powers of attorney in her favour. She has not stated therein that she has been authorised to exchange the said area. Mst. Mumtaz Begum the executant of the deed Exh.D.W.1/1 has stated in the deed that she on the basis of the power of attorney in her favour is authorised to sell the area. The two deeds have been executed on 7-2-1967. Fateh Muhammad and Muhammad Anwar Khan are the attesting witnesses of both the deeds. The deed Exh.D.W.1/1 was presented for the registration at 1-30 p.m. On 7-2-1967. The deed Exh.D.W.1/2 was presented for registration at 2 p.m. On the same day. Jumma Khan (D.W.3) one of the three vendees has deposed in cross-examination that the sale transaction and the exchange negotiations took place on the same day in the same meeting and Mst. Mumtaz Begum had sent for him to Peshawar as she wanted to sell the land because being lessee of the land, he had the prior right to purchase the land. He further added that he could not say whether or not Mst. Mumtaz Begum had exchanged any land in the village (Ismailzai) except the one referred to above. D.W.1, Fateh Muhammad one of the attesting witnesses of both the deeds has testified that he had seen in Court 'the original sale-deed, dated 7-2-1967, certified copy Exh.D.W.1/1 and the original sale-deed, dated 7-2-1967 certified Exh.D.W.1/2. P.W. 2 Muhammad Ibrar attorney of the plaintiffs has deposed in examinationin-chief that the whole area of 16 Kanals 16 Marlas has been sold by the vendor by means of one transaction, but it has been divided in two transactions of exchange and sale fraudulently and fictitiously and that the exchange deed is a fictitious one. This witness has stated in cross-examination that he did not know if the land given in exchange by the vendees to the vendor is their ownership or not, because he has not seen it. On the basis of the above discussion of the oral and circumstantial evidence, the two Courts below have held that the transaction in the deed (copy Exh.D.W.1/1) is not an exchange transaction but the same is a part of the sale transaction by deed Exh.D.W.1/1 and by both the deeds, the vendors have in fact and reality
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sold the entire suit area of 36 Kanals 16 Malras for the sale consideration mentioned in the sale- deed Exh.D.W.1/1. ' The learned counsel for the defendants-appellants argued that the alienation by deed Exh.D.W.1/1 is an exchange transaction because Muhammad Ibrar, the attorney of the plaintiffs,has called it exchange. The argument is fallacious. Reading the statement of Muhammad Ibrar in cross- examination in conjunction with his testimony in examination-in-chief, it is clear that the witness did not know that the land given in exchange by the vendees to the vendors is or is not their property and that the exchange is fraudulent and fictitious. ' Mr. D.M. Kamil, counsel for the plaintiffs vehemently argued that the two Courts below have held that the alienation by the two deeds is in fact one transaction and that this being a question of fact concurrently found by both the Courts cannot be gone into in second appeal. The argument appears to be well-founded. In Ajmal Khan v. Alam Khan AIR 1917 Lah. 156 the first contention was that the transaction in connection with which the pre-emption suit was brought is mortgage and not a sale. The question has been discussed at page 157 as follows:- "As regards, the first question, the matter is more difficult and 1 have been referred to several rulings which have been rather treated by counsel in arguments before me as conflicting, but which are really to my mind not conflicting at all. On behalf of the appellant, I am referred to a Privy Council ruling, Fateh Chand v. Kishan Kunwar (1912) 34 All. 579, Diwan Chand v. Sundar (1961) 34 68 PR (1961), and Narain Singh v. Jaggat Singh (1912) 14 IC 331. Now if these rulings be carefully read, it will be seen in every one of them the proposition laid down is substantially this that, if the question decided by the lower appellate Court is a question to be decided on the construction of a deed, then the question is one of law, but that, if it is to be decided not on the construction of the deed but on the deed combined with surrounding circumstances, then it is a question of fact. To put the point in another way, if the question the Court has to answer is, is this document, taken on its own wording, a sale or a mortgage (or whatever may be the actual controversy in the case), then the question is one of law; if on the other hand the question to be answered by the Court is, this document on the face of it is a mortgage, but was the contract actually entered into between the parties something different from this, namely a sale, and if in order to decide this question the Court has to consider the terms of the mortgage and surrounding circumstances, then it is question of fact" ' In Nar Singh Narain v. Sant Ram and others AIR 1931 Oudh 424, the vendor executed two documents at one and the same time. The first of these two documents purported to be a transfer of sale for a share of Patti. The second purported to be a figt (Shankalapnama) of some share. The two Courts below had held that the intention of the parties was to transfer the whole of the 6 pies 5/1 Krants to the defendants transferees for the amount specified in the sale-deed and that the transaction had been disguised in the form of two deeds for the purpose of putting difficulties in the way of a suit for pre-emption. The contention put forward was that the Shankalapnama was a separate and independent transaction having no concern with the sale-deed and the Courts below were not competent to look beyond the terms of the documents. The question was discussed at page 425 as under:- "With regard to the first point, the appellant's learned counsel relies on the case of Parshatain Das v. Abdul Rahman AIR 1927 Oudh 576. I am, unable to see how the decision in that case can assist the appellant. The respondent relies on the case of Muhammad Ishaq v. Tahirunnisa AIR 1928 Oudh 472 which has been referred to in the judgment of the lower appellate Court. In this case it is clearly laid down that while it is not forbidden to a person to circumvent the law of pre-emption by taking a transfer which falls short of a sale, there is a marked distinction between a device and a disguise. A device is permitted but it does not mean that a disguise cannot be exposed. Where the parties have really entered into a sale transaction but have disguised it under the mask or cloak of a
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different transaction, the Court must look to the real nature of the transaction for the purpose of determining whether it could be subject to the right of pre-emption or not. Naturally where there is no other evidence of the intention of the parties other than the document itself, the question as was observed, in the judgment in the case just referred to resolve itself into one of construction pure and simple. ' But if evidence is forthcoming to show the real nature of the transaction it cannot be ignored. It is clear, therefore, that evidence as to the real nature of the transaction is admissible. In the present case, there is not only the oral evidence of witnesses that the intention of the parties was to effect a sale of the whole of 6 pies 5/1/2 Krants but, there are also the very significant circumstances that the transferees under the sale-deed and the Shankalapnama are real brothers, that they constitute a joint Hindu family, and that there was no motive for Mst. Banki Kuer to make a gift to Narsing Narain who was stranger to the family and of a different case. In these circumstances the findings of fact arrived at by the lower appellate Court are conclusive regarding the nature of the transaction being that of sale and cannot be questioned in second appeal." ' In Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan PLD 1966 SC 612 it was held that the proper legal effect of a document or of a proved fact is always a question of law, but when an inference is to be drawn as to a question of fact then whether the inference is drawn from oral evidence or from documents it is always a question of fact. This dictum has been discussed in the case at pages 626 and 627, as under:-- "In the case of Wali Muhammad and others v. Muhammad Bakhsh and others 57 I A 86 the Judicial Committee of the Privy Council laid down some propositions for determining as to what are and what are not questions of law. It may be worthwhile to set them out here: (1) The proper legal effect of a proved fact is essentially a question of law, but the question whether a fact has been proved when evidence for and against has been properly admitted is necessarily a pure question of fact. (2) Whether the question to be decided is one of fact, it does not involve an issue of law merely because documents which were not instruments of title or otherwise the direct foundations of right, but were really historical materials, have to be construed for the purpose of deciding the question. ' Again in the case of Nafar Chandra Pal v. Shaukur and others 45 I A 183 the Privy Council observed:--"Questions of law and of fact are sometimes difficult to disentangle. The proper legal effect of a proved fact is essentially a question of law, so also is the question of admissibility of evidence and the question of whether any evidence has been offered on one side or the other; but the question whether the fact has been proved, when evidence for and against has been properly admitted, is necessarily a pure question of fact." ' We see no reason to depart from this enunciation of law and applying the tests in the present case we find the question that fell for consideration was as to what was the true intent of the parties to be gathered from the terms of the compromise. In order to ascertain this true intent the surrounding facts and circumstances could legitimately be looked into but that this did not, in our view, make it a question of fact, for , the question, nevertheless remained as to what was the legal effect of the said compromise decree." ' In S. Masih Hassan v. Allah Diya and others AIR 1947 Lah. 320 it was held: "A finding that the exchange was in fact a sale which was given the appearance of an exchange to defeat the right of pre-emption is a finding of fact when it is not based exclusively upon the interpretation of the deed of transfer but is based also upon consideration of the facts and circumstances surrounding the transaction e.g. The statements of parties and their acts at the time of and subsequent to the transaction and, therefore, cannot be disturbed in second appeal. The fact that conclusions drawn from facts and circumstances are not reasonable is not a sufficient ground for interfering with the finding."
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' The learned counsel for the defendants-appellants in reply relied on Ch. Ghulam Ahmad Khan v. Diwan Sheikh Ghulam Qatabuddin and another PLD 1960 (W.P.) Lah. 461, wherein it has been ruled:-- "The question whether on the facts found the two sale-deeds constituted one transaction or more is a question of law, because it calls for the determination of the legal effect of the proved facts. The question whether the legal effect of the two sales was that they should be regarded as one transaction is a question that is capable of being agitated in second appeal." ' The learned Single Judge has discussed the point at page-66 as under: "Exhibits D-3 and D-4 having been proved, the dates of their execution and the description of the property transferred by them having been brought on the record and the intention of the vendor to sell the entire plot having been established by direct evidence, it was a question of fact, according to counsel and not question of law whether the two sale-deeds constituted one…
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