Law:

Section:

Civil Procedure Code, 1908 (V of 1908)-- ----S. 115--Suit for possession through pre-emption--Defendant/ respondent in his written statement insisted that he had acquired the land by exchange--Suit was dismissed by trial Court--First appeal was also dismissed by ADJ--Revision petition--Held: To prove distinction between device and disguise evidence led by the parties including circumstantial has to be looked into--Impugned s were completely silent vis-a-vis the significant aspect of the matter, which remained totally un-explained by the respondent--The transaction is of a sale and in the absence of any evidence to the contrary sale price is one mentioned in the plaint as also in the evidence--Case remanded to first appellate Court for deciding the issue afresh in accordance with law--Order accordingly. THIS JUDGMENT DELIVERED BY: MAULVI ANWAR-UL-HAQ, JUSTICE---.--- This judgment shall decide C.R. No. 2071-07 and C.R. No. 2072-07, as common questions are involved. 2. The distinguishing facts an as follows:-- (i) In the matter of C.R. No. 2071 the respondent vide mutation of Exchange No. 1120 acquired land measuring 33 kanals 8 marlas. The case of the petitioner was that he had in fact purchased the land for Rs. 2,50,000/-. (ii) In the matter of C.R.No. 2072/07 vide exchange Mutation No. 1123 attested on 223.03 the respondent acquired land measuring 8 kanals 11 marlas. The case of the petitioner was that he purchased the land for Rs. 80,000/-. Both the suits were filed on 21.7.03. The petitioner claimed to be a Shafi-e-Shareek. Khalit and Jar. The performance of talbs was pleaded in both the cases. The respondent filed written statements insisting that he has acquired the land by exchange and denied the other allegations. Following issues were framed in the said cases:-- 1. Whether the plaintiff made valid talabs as required by law? OPP 2. Whether the plaintiff has got superior right of pre-emption qua the defendant? OPP 3. Whether transaction was sale against consideration of Rs. 2,50,000 (Rs. 80.000/- in the other case) and that it was shaped as exchange just to avoid pre-emption right of plaintiff? OPP 4. Whether the plaintiff has got no cause of action? OPD…

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