1986 PLP 884 (MLD)

On 23‑12‑1979, Sher Ahmad respondent filed suit for possession by pre‑emption against Muhammad Hanif appellant. The suit was contested whereon six issues were framed. The trial Court decreed the suit subject to payment of Rs. 30,000 as sale price of the suit land. Feeling aggrieved, Sher Muhammad plaintiff filed appeal challenging the sale price determined by the trial Court. The appeal was entrusted to the learned Additional District Judge who vide his judgment and decree dated 20‑7‑1981 reduced the sale price from Rs. 30,000 to Rs.13,854.29. Hence this appeal.

2. Before me the findings of the learned Additional District Judge on issues Nos. 3 and 4 whereby he had reduced the sale price have been challenged. The issues are as under:‑ Issue No.3‑‑ Whether the sale price of Rs., 30,000 was fixed or paid in good faith? O.P.D. Issue No. 4‑‑ If the above issue is not proved what was the market value of the suit land at the time of its sale? O.P. Parties."

3. Learned counsel for the appellant submitted that the appellant vendee had successfully proved that sale price of Rs. 30,000 was bona fide fixed and actually paid; that the trial Court had appreciated the evidence of the parties on this issue properly and had given good reasons in support of its finding but the learned Additional District judge has reduced the sale price fixed by the trial Court without legal and .factual justification. On the other hand, the learned counsel for the respondent has supported the judgment of the learned Additional District Judge. He argued that in the circumstances of the case, the possibility that the amount which was paid before the Sub‑Registrar was returned to the vendor cannot be excluded and as such the learned Additional District Judge has rightly reduced the sale price.

4. I have considered arguments advanced by the learned counsel with care. I feel inclined to agree with the learned counsel for the appellant for the reasons that the sale was effected through registered sale‑deed copy Exh. 4; that the registered sale‑deed shows that Rs.30,000 were paid by the vendee‑respondent to the vendor in the presence of the Sub‑Registrar; that the Sub‑Registrar has give certificate to the effect that the vendor had received Rs. 30,010 fro the vendee as sale price of the suit land; that it was neither allege in the written statement nor proved at the trial that money receive by the vendor was returned to the vendee outside; that the attorney of the vendee‑defendant had entered in the witness‑box and that the trial Court has given sound and cogent reasons in support of the conclusion that Rs.30,000 were fixed and actually paid as sale price to the suit land. I have examined the reasons given by the learned Additional District Judge to reverse the finding on issue No.3 and have not been able to persuade myself to agree with the same. The operative part of the judgment may be reproduced with advantage: "

7. As I have said above that the vendee‑defendant did not appear in the trial Court in order to prove the price of the suit land at the time of its sale, therefore, the evidence produced on behalf of the plaintiff‑appellant should not be accepted. Ghani‑ur‑Rehman Revenue Patwari who appeared as P.W.1 prepared five‑yearly average statement which is Exh. P.1 on the file of the lower Court. He has stated in his statement that according to his five‑yearly average sale price of the suit land at the time of its sale was Rs.13,864.29.

8. P.W.2 is the appellant‑plaintiff who has stated that the land in dispute was sold for the sum of Rs.2,800 and P.‑W. 1 is ‑the Revenue Patwari, Ghani‑ur‑Rehman, who deposed that in accordance with the five‑yearly average statement the price of the suit land is Rs.13,864.29. The respondent, vendee‑defendant has not given any evidence in order to rebut the five‑yearly average statement, Exh. P.1 as well as statement of Ghani‑ur‑Rehman P.W.1 and the statement of appellant‑plaintiff P.W.2. The vendee‑defendant has not even taken the trouble to appear in the trial Court in order to rebut the documentary evidence produced through a verbal statement.

9. In view of the above I hereby reverse the findings on issue No. 3 and hold that the price of the disputed property Rs.13, 854.29 has been fixed in good faith and was actually paid and the same is its market value". Since the attorney of the vendee had appeared as a witness and the of the registered sale‑deed was also brought on the record therefore, mere non‑appearance of the vendee as a witness could not be made a ground to set aside the well‑reasoned judgment of the tria Court. There is nothing on the record that sale price of Rs.13,854.2 was fixed in good faith and actually paid. Since the appellant‑vendee has successfully proved Issue No. 3, therefore, the market value of the disputed property need not be determined because in that case issue No.4 becomes redundant.

6. Resultantly the appeal is accepted. The findings of the learned Additional District Judge on Issues Nos. 3 and 4 are reversed and the judgment and decree of the trial Court is restored. The respondent plaintiff shall deposit Rs. 30,000 less the amount already deposited, before 11‑6‑1984 failing which the suit of the plaintiff‑respondent shall stand dismissed. In the circumstances of the case, the parties are left to bear their own costs. Appeal allowed.