P L D 2000 Lahore 190 (PLP)

5. In order to examine the validity of the order of the learned trial Court passed under section 24 of the Act, reference to the relevant provisions of law is essential. It reads as follows:‑‑ "

24. Plaintiff to deposit sale price of the property.‑‑(1) In every suit for pre‑emption the Court shall require the plaintiff to deposit in such Court one‑third of the sale price of the property in cash within such period as the Court may fix: Provided that such period shall not extend beyond thirty days of the filing of the suit: Provided further that if no sale price is mentioned in the sale deed or in the mutation., or the price so mentioned appears to be inflated, the Court shall require deposit of one‑third of the probable value of the property. (2) Where the plaintiff fails to make a deposit under subsection (1) within the period fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed. (3) Every sum deposited under subsection (1) shall be available for the discharge of costs. (4) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre‑emptor. " Both the learned counsel state that there is no reported judgment on the point in issue under section 24 of the Punjab Pre‑emption Act, 1991.

6. Some judgments are available on section 24 of N.‑W.F.P. Pre emption Act, 1987, which is almost analogous to section 24 of Punjab Pre emption Act, 1991. In Awal Noor v. District Judge, Karak and 8 others (1992 SCMR 746) a suit for pre‑emption had been filed in which the learned trial Court fixed the probable value of the property and ordered the deposit of 1/3rd of the same as sale had not been incorporated in a sale‑deed or in a mutation. Later on the defendants appeared and claimed the value of the property differently as stated in a Tamassak. The learned trial Judge by a subsequent order directed the plaintiff to deposit an additional amount. This order was challenged in revision before the High Court by the plaintiff on the ground that after expiry of 30 days no order for further deposit of 1/3rd amount could be passed which was dismissed. In appeal before the Hon'ble Supreme Court, the second proviso to section 24 of N.‑W.F.P. Pre‑emption Act, 1987, was considered and it was observed as follows:‑‑ "The second proviso also is restrictive in nature. Those cases in which the sale price is neither in the sale‑deed nor in the mutation and also in those cases as in the present one in which there was at the relevant time neither a sale‑deed nor a mutation, the Court has to rely on its own judgment after an enquiry of preliminary/summary nature seeking material from the plaintiff and if per chance the defendant has appeared before him also. The determination of the value of the property in these circumstances, of course, has to be probable. Thus, the intention of the newly enacted law in this behalf is clear that the amount has to be deposited up to 30th day of the filing of the suit and not beyond that and the amount has to be determined through a process of approximation resulting in the probable value if there is nothing mentioned in the sale‑deed or the mutation. " 7 In Habibullah Khan v. Amir Zaman and 9 others (1995 SCMR 135) it was laid down that:‑ "The bare reading thereof makes it amply clear that the Court had to determine the probable value of the property only if no sale price had been mentioned in the sale‑deed or in the mutation, meaning thereby that if the sale consideration was mentioned in the documents of transfer, the Court had no discretion in the matter and was bound to pass the order for deposit according to subsection (1) of section 24." (Underlined by me for emphasis).

8. In the case of Sher Bahadur Khan (supra) it was held that the Court is under obligation to direct the plaintiff to deposit one‑third of the sale price of the property in cash, on the basis of the price mentioned in the sale‑deed or in the mutation. It was further held that the question of actual payment of price or its fixation in good faith or about market value of land are to be resolved at the time of trial as envisaged by sections 27 and 28 of the Act and not at the initial stage of the suit.

9. The precedents referred to above do furnish a useful basis for understanding the object, purpose and intention of the legislation. It is clearly indicative that the process of approximation to fix the probable value I of the property is to be resorted if the sale price is not mentioned in the sale‑deed or in the mutation. Whereas subsection (1) of section 24 obliges the Court to require the plaintiff to deposit 1 /3rd of the sale price of the property in cash within 30 days, the proviso empowers the Court to fix the probable value when the sale price is not mentioned in the sale‑deed or in the mutation or when the price so mentioned appears to be inflated. The later part of the proviso comes into play only when it appears to the Court that the sale price mentioned in the sale‑deed or in the mutation is inflated. Otherwise almost in every suit the sale price mentioned in the sale‑deed or in the mutation would be assailed asking the Court to fix a probable value of the property to avoid the mandatory requirement of deposit under section 24(1) of the Act. This cannot be the intention of the law. The official documents such as sale‑deed or mutation authenticated by the public functionaries have a presumption of correctness and cannot be disregarded merely on the assertion of a non‑party to the transaction. It is the Court only when it appears to it that the price mentioned in the sale‑deed or the mutation is inflated, that the process of approximation of probable value is to be adopted. ,

10. In the present case mutation which mentioned the value of the property was before the Court. It was made basis for directing the petitioners/plaintiffs to make deposit of 1/3rd of the same. This order was passed in the presence of the learned counsel for the plaintiffs but no objection was raised before the learned trial Judge that the price so 8 mentioned in the mutation was inflated. Even no application was made after passing of the said order before the learned trial Judge in the nature of review. In the circumstances, I do not find any illegality having been committed by the learned trial Judge in ordering the deposit of 1/3rd of the value of the property mentioned in the mutation.

11. It may be noted that the direction ‑for deposit of 1/3rd of the price is although mandatory under section 24(1) of the Act yet as to the real value of the property it is not final and is of tentative nature. Section 27 of the Act empowers the Court to determine the market value of the property. The criteria for determining the market value is laid down in section 28 of the C Act. The consequences of such a determination are taken care of by section 25 of the Act. All this shows that a detailed enquiry as to the determination of the market value of property is part of the trial of the suit when the parties concerned get an opportunity to prove their respective pleas. Thus, notwithstanding the compliance of order under section 24 of the Act by the plaintiff it can be proved that market value is different than the one mentioned in the deed or mutation.

12. The learned counsel for‑the petitioners has produced an affidavit of Abdul Rauf son of Sardar Ali to show that the land had indeed been sold for Rs.9,00,

000. However, the learned counsel for the respondents has produced an affidavit by Sardar Ali contradicting the depositions of Abdul Rauf. I am not inclined to comment upon the assertion of either of the deponents at this stage which is a matter of evidence and for the learned trial Court to come to a conclusion on receiving evidence led by the parties and its appreciation. For the above reasons, I do not find any merit in this petition, which is accordingly dismissed. H.B.T./A‑138/L Petition dismissed.