1987 PLP 2722 (MLD)

Amir Alam Khan for Respondent. Date of hearing: 27th April, 1987. This revision petition impugning the validity of the appellate judgment and decree of the learned District Judge, Okara, dated the 22nd April, 1986, raising the quantum of pre-emption money payable by the petitioner to Rs.50,000 arises out of the following circumstances. The respondents, Muhammad Ayub and Khalid Pervaiz, purchased the land in dispute measuring 7 kanals 5 marlas situate in the area of Chak No.23-A/GD, tehsil and district Okara, from Muhammad Arshad, Muhammad Saeed and Ibrahim by means of a sale-deed which was scribed and registered on the 16th January, 1983, and whose copy is Ex.P.1. On the 11th January, 1984, Muhammad Jamil, petitioner, instituted suit to pre-empt the sale. The petitioner is the cousin of Muhammad Arshad and Muhammad Saeed and nephew of Ibrahim. He is also owner of the estate where the and in question lies. His right of pre-emption is indisputably superior to that of the respondents who are neither related to the vendors nor own any other land in Chak No.23-A/GD.

2. The petitioner alleged that the sale had taken place for Rs.25,000 and that the same amount represented the market value of the land in suit but an exaggerated amount of Rs.50,000 had been fictitiously described as consideration in the sale-deed.

3. The respondents contested the suit and averred that the petitioner was estopped from bringing the suit as he had himself got the bargain of sale settled and further that he had waived his right to pre-empt the sale because he had refused to buy the land when the vendors had offered him purchase it. They maintained that the price of Rs.50,000 had been fixed in good faith and paid and that the same amount represented the market value of the land. They claimed compensation in the sum of Rs.3,000 which they said they had spent on effecting improvements.

4. The learned Senior Civil Judge, Okara, who tried the suit, was not favourably impressed by the respondents' pleas of estoppel and waiver. Having formed the view that fixation or payment of Rs.50,000 as price of the land in suit had not been proved he proceeded to fix at Rs.25,000 its market value on the basis of the five yearly average price worked out by the patwari in the fard, Exh.P.7, and taking into consideration the statement of one of the vendors. He believed that the respondents had spent Rs.3,000 on improvements and consequently, vide his judgment of the 9th March, 1986, decreed the suit on payment of Rs.28,000 by the petitioner.

5. In appeal preferred by the respondents the learned District Judge, Okara, heavily banked upon the vendors' acknowledgement before the Sub-Registrar of the c4rectness of the contents of the sale-deed at the time of its registration to conclude that the payment of Rs.50,000 stood established. He raised the pre-emption money to Rs.50,

000. Strange enough he did not direct payment of Rs.3,000 as compensation for improvements though he accepted the finding of the learned trial Court in this behalf.

6. In revision before this Court the dispute between the parties centered on the determination of market value of the land in question, the parties being conscious of the fact that fixation in good faith or payment of Rs.50,000 as price of the land could not be said to have been proved. As evidence produced by the parties concerning the issue of market value was sanctity and unsatisfactory the learned counsel for the parties agreed that some Commissioner should be appointed to ascertain the market value. Accordingly with the consent of the learned counsel, Mr. Abdul Shakur Saleemi, Advocate, Okara, was appointed Commissioner to determine the market value of the land in dispute obtaining a: the time of its sale. He was directed to hold necessary inquiry after due notice to the parties for finding out the market value and submit his report to the learned Senior Civil Judge, Okara, who, after inviting objections .of the parties to the report and receiving evidence touching the objections, was to record his finding on the question of market value and send his report to this Court. In this report of the 1st March, 1987, he, agreeing with the Commissioner, held that the market value of the land in question was Rs.36,250. did not object to the finding of the learned Senior Civil Judge. The petitioner, who in the first instance filed objections to the learned Senior Civil Judge's report, withdrew them at the time of arguments. Therefore, it is just and fair to assess the market value at Rs.36,

250. The petitioner will have to pay the aforesaid sum plus Rs.3,000 as compensation for improvements effected by the respondents.

7. The contention of the learned counsel for the respondents that with the decision of the Shariat Appellate Bench of the Supreme Court of Pakistan delivered in Government of N.-W.F.P. v. Said Kamal Shah P L D 1986 S C 360, the petitioner's right of pre-emption has been totally extinguished rendering him disentitled to hold any share of land is, in face of the decision of this Court reported as Abdul Ghaffar Khan v. Saghir Ahmad Aslam P L D 1987 Lah. 358, without force because the present litigation having started before the 31st July, 1986, would be regulated and decided according to section 15 of the Punjab Pre-emption Act, 1913.

8. In view of the above this revision petition is accepted, the appellate decree of the learned District Judge is modified to the extent that instead of Rs.50,000 the petitioner will pay Rs.39,

250. The petitioner shall pay into the trial Court Rs.39,250 (less the amount he has already deposited) on or before the 14th January, 1988, and on such payment being made the respondents shall deliver possession of the land in dispute to the petitioner whose title thereto shall be deemed to have accrued from the date of such payment but if the aforesaid amount is not so paid the petitioner's suit shall be dismissed with costs throughout. The parties are left to bear their own costs in this Court. H. B. T./M-418/L??????????????????????????????????????????????????????????????????????????????? Petition accepted.