P L D 2006 Lahore 700 (PLP)

JAWWAD S. KHAWAJA, J.

The respondent-plaintiff filed a suit against the petitioner-defendant seeking possession of the suit property through pre-emption. The suit has been concurrently decreed by the learned trial Court vide judgment and decree dated 25-3-2004 and by the learned appellate Court vide decree dated 15-6-2005.

2. The sole ground, on which this petition was admitted to regular hearing, was the question of the price of the suit land. Issues Nos.2, 3 and 4 were framed in respect of price in the following terms:-- "(2) Whether the suit land was sold for Rs.7000 ? OPP (3) Whether the ostensible sale price of Rs.20000 was fixed in good faith or actually paid? OPD (4) If issues Nos.2 and 3 are not proved, what was the market value of the suit land at the time of sale? OPD"

3. I have gone through the record and the impugned judgments with the assistance of learned counsel for both sides. The petitioner as D. W.1 and Bashir Ahmad D. W.2 have, categorically deposed that a sum of Rs.20,000 was paid as consideration for the sale. This testimony has not been rebutted through any admissible evidence. It is true that the respondent-plaintiff and his witnesses have deposed that the amount paid by the petitioner to the vendor, was Rs.7,000 and not Rs.20,

000. This testimony, however, is merely conjectural. No basis has been given by the respondent and his witnesses for the statement made by them relating to price. The P.Ws were neither present at the time of mutation nor when the bargain was struck between the petitioner and the vendor. It is, therefore, clear that they were not in a position to give evidence of the amount of consideration actually paid by the petitioner.

4. The respondent-plaintiff also produced two mutations which are Exh.P.5 and Exh.P.6 on the record, with the object of proving the market value of the land. Exh.P.5 is wholly irrelevant because it reflects a mortgage and not a sale. Exh.P-6 relates to sale of 7 Kanals, 3 Marlas for a sum of Rs.100,

000. Based on this document, the market value of the suit land, which measures 13 Marlas, has been determined as Rs.7,

000. Both Courts below have relied on the aforesaid mutation (Exh.P.6) for holding that the sale price was Rs.7,

000. It has also been held that the petitioner-defendant had failed to prove that he paid Rs.20,000 as sale consideration.

5. Learned counsel for the petitioner, firstly, argued that in the light of the testimony of the petitioner and Bashir Ahmad (D.W.2) and in view of the mutation of sale, the payment of Rs.20,000 stood proved. On the other hand, there was no direct evidence produced by the respondent-plaintiff to show that a lesser amount was paid by the petitioner. This contention has merit because the fact in issue set out in issue No.3, was whether the sum of Rs.20,000 had actually been paid. The evidence discussed above shows that payment of this amount was proved.

6. I now take up for discussion the reasoning of the learned Courts below. Issues Nos.2, 3 and 4, reproduced above, were taken up together by the learned Courts below. The onus to prove payment of actual consideration, as set out in Issues Nos.2 and 3, was on the petitioner-defendant. In my opinion, this onus stood discharged through the testimony of the petitioner as D.W. 1 and Bashir Ahmad as D.W.2. Both of them stated that the suit land was purchased for a sum of Rs.20,

000. The learned Courts below have disregarded the testimony of the D.Ws., firstly, for the reason that Bashir Ahmad (D.W.2) had not stated that the sale consideration was paid in his presence. This constitutes a misreading of evidence inasmuch as the said witness had testified that the petitioner had acquired the suit property for Rs.20,

000. During cross-examination not a single suggestion was put to him that he was not a witness to the payment or the sale transaction. The thrust of the cross-examination was premised on the suggestion that the consideration paid was Rs.7,

000. This was denied by D.W.2. Bashir Ahmad is not related to the petitioner and his testimony as to the amount paid by way of consideration, has not been impeached in cross-examination. In view of this testimony and in the absence of any evidence to the contrary, the language used by D.W.2 could not have been construed as lacking probative value in respect of Issue No.3.

7. In the above circumstances, issue No.4, in its terms, became inconsequential. The learned Courts below, however, appear to have confused the actual payment proved through testimony discussed above, with the market value and have, therefore, proceeded to determine the market value of the suit property. It has been held that the petitioner's failure to produce the average sale price (aust bai) of the area or any other document to prove the value of the property, must be held against him. This is a material error of law because the petitioner was only required to prove that he had paid the sum of Rs.20,000 as consideration. This was done through the oral testimony discussed above and the mutation of sale itself which showed payment of Rs.20,000 by way of consideration. The aust bai or other mutations could only have provided evidence of market value generally and not evidence of the actual amount paid as required in issue No.3 reproduced above.

8. The learned Courts below have relied on mutation No.3661 (Exh.P.5) and mutation No. 3858 (Exh.P.6) to arrive at the market value of the suit property. Apart from the fact noted above, that determination of market value had become unnecessary, reliance on the mutations (Exh.P.5 & Exh.P.6) is also misconceived. Exh.P.5, for the reason noted above, has no relevance. The other mutation (Exh.P.6) is in respect of a sale. There is, however, no evidence on the record as to the location, quality and other particulars of the land mentioned in Exh.P.6. It is, therefore, not possible to compare the land in the mutation (Exh.P.6) with the land which is subject matter of the present lis or to hold that the two properties were, in all material particulars, similar. For this reason, reliance of the learned Courts below on Exh.P.6 for the purpose of determining the market value of the suit land is not justified.

9. At this point, I may add that the very fact the respondent produced only one mutation of sale i.e. Exh.P.6 and did not produce other mutations in the village or the average price (aust bai) of sales made in the village, was sufficient for the purpose of holding that the respondent-plaintiff had failed to discharge the onus of proof placed on him in respect of Issue No.4. The learned Courts below appear to have been swayed by the fact that the suit land was in the possession of the respondent-plaintiff and, therefore, payment of Rs.20,000 was not believable. The factum of possession, coupled with the reasoning based on Exh.P.6 noted above, was treated by the Courts below to conclude that the petitioner could not have paid "such huge amount as sale consideration". This conclusion, I am afraid, is entirely conjectural and is not supported by the evidence available on record. It is the respondent who had been burdened with proving Issue No.4. Had he produced the aust bai or led evidence as to the location, quality etc. of the land in Exh.P.6 to enable comparison of the said land with the suit land, the Courts below could, perhaps, have treated such evidence as proof of the probable market value of the suit land. No evidence to this end, however, has been produced by the respondent.

10. I now need to touch upon the question of market value in the context of the Punjab Pre-emption Act 1991. For this purpose, reference may be made to the provisions of section 28 of the said Act which provides as under:-- "

28. Market value how to be determined.

For the purpose of determining the market value of a property, the court may consider the following, among other matters, as evidence of such value. (a) the price or value actually received or to be received by the vendor from the vendee; (b) the estimated amount of the average annual net profits of the property; (c) the value of similar property in the neighbourhood; and (d) the value of similar property as shown by previous sales made in the near past." The respondent, quite clearly, did not produce evidence in respect of the four matters which legitimately could have been considered by the Courts below for determining the market value of the property in question. Firstly, the respondent-plaintiff failed to produce any evidence that the amount of consideration actually received by the vendor from the vendee, was Rs.7,000 as alleged by him. Secondly, the respondent did not produce the estimate of the average annual net profits of the property. Thirdly, no evidence of the value of similar property in the neighbourhood was brought on record. For reason discussed above, the mutation Exh.P.6 by itself cannot be treated as evidence of similar property. Lastly, there is no evidence on record of previous sales of similar property made shortly prior to the sale mutation which is dated 18-11-1997. Mutation No.3858 (Exh.P.6), it may be noted, was sanctioned on 31-7-2000 i.e. after the disputed sale. In this view of the matter, there can be no doubt at all, that the respondent had failed to prove the market value of the suit land.

11. In the foregoing circumstances, I find that the findings of the learned Courts below on issues Nos.2, 3 and 4 are not legally sustainable. The same are, therefore, set aside. The decree in favour of the respondent is modified and it is held that the purchase money, paid by the petitioner, was Rs.20,

000. In the circumstances the respondent-plaintiff is directed to deposit the said amount (less any amount already paid) in the trial Court on or before 9-7-2006, failing which the suit of the respondent-plaintiff shall stand dismissed with costs without any further order. The petitioner shall also be entitled to his costs throughout. S.M.B./A-130/L Order accordingly.