1984 PLP 974 (CLC)

(a) N.W. F. P. Pre‑emption Act (XIV of 1950)‑ ‑‑ Ss. 25 & 27‑Civil Procedure Code (V of 1908), S. 115 Ascertainment of price actually paid by vendee‑Market value- Counsel for vendees appearing before trial Court during course of arguments and requesting that one year average should be accept ed as market price of suit land‑Admission on part of counsel for party at bar on point of fact, held, binding on such party and shall suffice to rebut presumption attached to endorsement of Sub- Registrar about genuine payment of sale price.‑[Admission Counsel and client]. Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 S C 53 ; Malak Wahid Bakhsh v. Chaudhary Muhammad Shaft P L D 1976 Lab. 1069 and Malak Hussain and others v. Lala Ram Chand P L D 1970 S C 299 ref. (b) N.‑W. F. P. Pre‑emption Act (XIV of 1950) ‑ ‑‑--Ss. 25 & 27‑Civil Procedure Code (V of 1908), S. 115 Determination of market value‑Five years average not a correct yardstick due to inffatory trend in real estate prices‑Market value on basis of one year average, held, apt and proper. (c) N.‑W. F. P. Pre‑emption Act (XIV of 1950)‑

‑‑ Ss. 25 & 27‑Civil Procedure Code (V of 1908), S. 115 Determination of market value‑Payment of charges of registra tion‑Vendee having no such claim either in written statement or memorandum of appeal before District Judge‑Judgment of District Judge asking vendee to pay charges in matter of award of cost of registration and stamps, held, not tenable. 1983 C L C 1705 ref. (d) Civil Procedure Code (V of 1908)‑ --‑‑S. 115 N.W.F.P. Preemption Act (XIV of 1950), Ss. 25 & 27‑Pre‑emption‑Revisional jurisdiction‑Ascertainment of price actually paid by vendee‑Judgment of District Judge based on misreading of evidence, non‑reading of weighty evidence and in some respects on no evidence‑Judgment of District Judge set aside.‑[Evidence]. At present the dispute between the parties is confined to the bona fide fixation of the ostensible sale price of rupees four lacs or its actual pay ment and the determination of the market value. Brifly stated, on 16th December, 1980 there was scribed a sale‑deed by one Din Muhammad, special attorney of Haji Abdul Khanan, vendor in favour of the attorney's three brothers to sell the suit land for rupees four lacs to be paid to him by Haji Muhammad Umar, vendee for himself and on behalf of the other vendees before the Sub‑Registrar. On 17t1% December, 1980 the said Din Muhammad, attorney of the vendor Muhammad Umar, one of the vendees presented the sale deed for registration when the sale price was paid to him in currency notes of rupees one hundred denomination before the Sub‑Registrar. The sale was pre‑empted by Feroz Khan, a co‑sharer alleging that the suit land was sold to the vendees by their brother, special attorney of the vendor for Rs.60,000 while there has been effected a fictitious payment of rupees four lacs before the Sub- Registrar and that the market value of the suit land was not more than Rs.60,

000. The vendees claimed in their written statement that the sale price was fixed in good faith, also actually paid and that infact the pre‑emption suit was brought for the benefit of the vendor to get the land back for a lesser price on the basis of five years average. The real market value of the suit land was further claimed to be rupees four lacs.

2. Besides revenue officials, pre‑emptor cited Khan Afzal, Jabbar and the vendor as his witnesses while the vendees listed Haji Din Muhammad, the attorney of the vendor, the Sub‑Registrar, Noor Shah and Ghulam Rasool, the marginal witnesses of the sale‑deed besides Haji Amir Muhammad, Muhammad Iqbal and Muhammad Ishaq, as their witnesses. However, at the trial the pre‑emptor produced patwari halqa (P. W. 1), with revenue record, fard jamabandis, akas shajra and Ausat panjsala and further recorded his statement as P. W.

2. The vendees examined, Registry Moharrir (D. W. 1) with certified copy of the registered sale deed while Haji Muhammad Umar, one of the vendees was also examined as D. W. The parties were contended with the above evidence and they closed their evidence.

3. By a judgment and decree, dated 23rd September, 1981 the trial Court decided issue of bona fide fixation of sale price and its actual pay. ment against the vendee and proceeded to assess the market value as per ausat panjsala in the sum of Rs.1,39,104.14. He accordingly granted a decree to the pre‑emptor on payment of the said amount. Vendees went in appeal and the learned Additional District Judge, Kohat by‑ his judg ment and decree, dated 20th February, 1982 found that since there has not been given the kind of the land sold by the mutations and also the dates of their attestation in the ausat panjsala, as such; he accepted the appeal, set aside the judgment and decree of the lower Court and remanded the case with directions to decide all the issues afresh according to law and facts.

4. After remand patwari halya was re‑examined who placed on file the list of dates of the attestation of mutations contained in ausat panjsala. He further stated that all those mutations were relating to the kind of the suit land. By a judgment and decree, dated 4th September, 1982 the learned trial Court repeated his findings on the issue of fixation and pay ment of the ostensible sale price against the vendees and again deter mined the market value as per ausat panjsala. As a result, he granted a decree to the pre‑emptor on payment of Rs.1,39,104.14. Vendees went in appeal and the learned District Judge, Kohat, by his judgment and decree, dated 16th May, 1983 determined the issue of bona fide fixation and actual payment of the sale price in the sum of rupees four lacs in favour of the vendees. He accordingly accepted the appeal, set aside the judgment and decree of the trial Court and instead granted a decree to the pre‑emptor on payment of rupees four lacs also directing him to pay the charges of registration to be determined by the Court at the time of the execution of the decree.

5. There has been challenged the above judgment and decree of the appellate Court by civil revision No. 364/83 on grounds that the learned appellate Court erred in deciding the issue of bona fide fixation and actual payment of ostensible sale price in view of the manifest contradictions in the statements of the vendee and the Registry . Moharrir. It was alleged that the vendees had infect failed to discharge the onus of issue by not producing the marginal witnesses of the sale‑deed and the vendor cited as their witnesses. It was contended that neither the vendees had claimed any cost incurred by them on the registration of the sale‑deed in their written statement nor an issue was struck on the point so much so that there had not been adduced any evidence on the point and that still the learned lower appellate Court had allowed the cost of stamps and charges of registration to the vendees to be determined by the Court at the time of the execution of the decree. It was claimed that the market value of the suit land on the basis of five years average as well as one year average preceding the sale was to assess muchless the ostensible sale price.

6. On the other hand, it was argued that the revisional powers were primarily intended for correcting errors made by subordinate Courts in exercise of their jurisdiction and that even if there has been an erroneous decision of facts by subordinate Courts, the same shall not be ordinarily revised by this Court unless it is based on no evidence or is otherwise so perverse as to cause grave injustice. In support a reference was made to Kanwal Nain and 3 others v. Fateh Khan and others (P L D 1983 S C 53). It was further contended that presumption of truth was attached to the Registrar's endorsement on the sale‑deed and that the pre‑emptor had failed to rebut the presumption arising in favour of the vendees by the endorsement of the Sub‑Registrar about the payment of the sale price. It was argued that after finding that the price mentioned in the sale‑deed was infact paid, there shall not necessitate the determination of issue on the market value of the property. 1n support reliance was placed on Malak Wahid Bakhsh v. Chaudhary Muhammad Shafr (P L D 1976 Lah. 1069) and R.Talak Hussain and others v. Lala Ram Chand (P L D 1.970 S C 299). 7, As already stated, the pre‑emptor had specifically alleged in his plaint that there had been made a fictitious payment of' the sale price before the Sub‑Registrar to the special attorney of the vendor in the person of the brother of the vendees which the latter had, however, denied and bona fide fixation and actual payment of the sale price was claimed. As such there was to lie a heavy burden on the vendees, in the circumstances, to prove the factum of the fixation of the sale price in the good faith or the genuineness of its actual payment. Vendees had cited the special attorney of the vendor and the marginal witnesses of the sale‑deed as their witnesses. They should have better produced them to prove the genuine payment of the sale price. Now 1vioharrir Registry produced as D. W. had stated that a sum of rupees four lacs was paid by Haji Muhammad Umar vendee before the Sub‑Registrar to Din Muhammad, the special attorney of the vendor in his presence. He knew Haji Muhammad Umar and Din Muhammad but did not know their inter se relationship of being brothers. He did not remember if Haji Abdul Khanan, the vendor was present at the time of the registration of the sale‑deed. Haji Muhammad Umar as D. W. had stated that the suit land was purchased for rupees four lacs through the registered deed. He stated that the sale price was paid to Haji Abdul Khanan, the vendor ‑who was present at the time of registration. He claimed to have paid the sale consideration to Haji Abdul Khanan in person. He stated that at the time of payment, he, Din Muhammad and Haji Abdul Khanan, Tehsildar and Moharrir Registry were present. He further stated that Din Muhammad had not paid the amount. The correct statement may be that Din Muhammad was not paid the amount. He admitted that Din Muhammad was his brother. He stated that he had given the name of Haji Abdul Khanan as his witness to his counsel at the time of filing the list of witnesses (the list, however, does not contain his name). He voluntarily stated that Haji Abdul Khanan was not ready to give evidence as he has told him that he was fearing from the pre‑emptor who might beat him in case he give evidence. He did not know if Haji Abdul Khanan was not prepared to give evidence because he was not to tell lie. In view of the evidence read above, the trial Court had deter mined the issue against the vendees as there has not come forth any evidence regarding the fixation of the sale price in good faith whilst the evidence regarding the genuine payment of the sale price was disbelieved for the payment was made to the special attorney of the vendor in the person of the brother of the vendees seemingly appearing that his appointment as special attorney was an arranged affair. The case law referred in support by the learned District Judge in P L D 1976 Lab. 1069, on one hand, no doubt, lays down that there is attached a presump tion of truth to the endorsement of the Registrar on the sale‑deed but it also holds that the presumption is rebutable by evidence like if the market value of such land is muchless than entered in the sale‑deed in which case the onus will shift to the vendee to show as to why be paid so much amount in excess of the market price. It was observed that there shall be taken all the relevant circumstances into consideration to deter mine the genuineness of the payment of the sale price. It was further held that if it is proved that the price actually paid was less than the price entered in the sale‑deed, the price so entered cannot be deemed to have been fixed in good faith. As far the proposition regarding the issue of market value, it is acknowledged that if a vendee proves the fixation of the sale price in good faith or its actual payment, there shall not arise the necessity of the determination of the market value. However, the market value and the overall circumstances of the case shall be relevant in determination of the issue regarding the fixation of the sale price in good faith or the genuineness of its payment. In the case before me, the sale‑deed was written on 16th December, 1980 for and on behalf of the vendor by his special attorney, Din Muhammad. There appears to be no sense of the vendor's presence in person on the following day before the Sub‑Registrar to receive the payment as claimed by the vendee, also duly rebutted by the endorsement itself stating that the payment was made to the special attorney of the vendor. The vendee Haji Muhammad Umar (D. W.) had not stated to have paid the amount to Din Muhammad, the special attorney of the vendor but claimed to have himself paid the amount to Haji Abdul Khanan, the vendor. Counsel for the vendees appearing before the trial Court during the course of arguments had requested that one year average arrived at from the five years average in the sum of Rs.2,80,971 should be accepted as market price of the suit land or a commission be issued to determine the market price. An admission on point of fact by a counsel for a party at the bar during the course of arguments is binding on a party and herein also the admission/offer together with other circumstances as discussed earlier shall suffice to rebut the presumption attached to the endorsement of the Sub‑Registrar about the genuine payment of the sale price. The finding of the learned District Judge on the issue is, therefore, reversed.

8. As regards the determination of the market value, five years average may not be a correct yardstick due to the inflationary trend in the Real Estate prices. Even the market value in the land acquisition cases are now determined on the basis of one year average preceding the notification under section 4 of the Land Acquisition Act, 1894 and it appears to be apt and proper to assess the market value on the basis of one year average which works out Rs.2,80,971 and also for added reason in view of the officer/admission made by the counsel for the vendees at the bar before the trial Court during the course of arguments to deter mine the market value on one year average basis. The market value of the suit land is, therefore, determined in the sum of Rs.2,80,971 and the issue is decided accordingly.

9. At the penultimate stage of the judgment, the learned District Judge had also obliged the pre‑emptor to pay the charges of the registra tion to be determined at the time of the execution of the decree. As earlier stated, the vendees bad neither stated to have incurred some expenses over the stamps and registration of the sale‑deed nor they had claimed the award of such costs in their written statement nor an issue on the point was claimed or framed. There was also not adduced evidence on the point so much so that the vendee appearing as D. W. did not say a word about it. Even in the memorandum of appeal filed before the learned District Judge, the vendees had not claimed the costs of registra tion, still the learned District Judge granted the charges of registration to them to be determined at the time of the execution of the decree. In support of the view of the District Judge a reference was made to 1983 C L C 1705, but in the said case the vendees had claimed the cost of stamps and registration, an issue was framed on the point, there was produced evidence on the issue and as a result of affirmative finding the trial Court had granted cost of stamps and registration to the vendees which finding was upheld by the said judgment. Hence the judgment of the learned District Judge is also not tenable in the matter of the award of cost of stamps and registration.

10. To sum up the aforesaid discussion, I find it a case of mis reading of evidence as well non‑reading of weighty evidence and above all in some respects judgment based on no evidence on the part of the learned District Judge, Kohat the first appellate Court. and as such, the revision is partly accepted, his judgment and decree, dated o 16th May, 1983 are set aside. The pre‑emptor‑petitioner is granted a decree for possession through pre‑emption on payment of Rs.2,80,971 with respect to the suit land detailed in the heading of the plaint. Since he has deposited the amount in excess, which shall be, therefore, refunded to him. He is also allowed the costs throughout. M. Y. H. Petition partly accepted.