1987 PLP 3043 (MLD)

Nemo for Respondent. Date of hearing: 11th October, 1987. This Regular Second Appeal is directed against the judgment/ decree dated the 13th of October, 1969, of the learned District Judge, Gujranwala, whereby the appellants-vendees first appeal was dismissed.

2. The present appeal was admitted only on the short point of market value. In the mutation, the ostensible payment was shown to be Rs. 4,000 whereas the appellants-vendees claimed in their written statement to have paid a sum of Rs. 7,

000. The courts below concurrently held that only a sum of Rs. 4,000 was paid. They further held that the excess amount was not paid. The learned District Judge, however, in the impugned judgment remarked that the Patwari's statement coupled with his five-yearly average determined the market value to be the same as shown in the mutation, namely, Rs. 4,000.

3. At the time of admission of this appeal, it war urged that the Patwari did not file any assessment and that the observation made by the learned District Judge to that extent was not borne by the record.

4. The respondent has not turned up despite service. He is proceeded against ex parte. I have gone through the record with the help of Mr. S.M. Rasheed counsel for the appellants. It seems correct that the Patwari D.W.2 did not prove any five-yearly average. Reference to it was really uncalled fur. Learned counsel argued that the statement of Mohammad Ali D.W.1 stood almost entirely unrebutted and that the same was misread by the courts below. It appears true that neither Mohammad Sharif P. W.1 nor Bahawal P. W.2 contradicted the version of Mohammad Ali D.W.1 in relation to the payment of additional amount. He claimed be present at the time of striking the bargain as also payment of the price. The mere fact that in the mutation only a sum of Rs. 4,000 was mentioned may not necessarily be a true index of what had actually passed between the vendor and the vendees. Mohammad Sharif P.W.1 conceded that no payment was made in his presence at the time of attestation of the mutation while Bahawal P.W.2 admitted that he had no knowledge of the sale itself. Thus, there is some justification for the view that the evidence of Mohammad Ali D.W.1, supporting the present appellants' version of paying the additional amount, was `misread.

6. As a result, the R.S.A. Is accepted. The impugned judgment and decrees are modified to the extent that he respondent /pre-emptor shall now pay Rs. 7,000 (rupees seven thousand only) in all inclusive of the amount already paid. This amount shall be deposited in the trial Court by or before the 13th of December, 1987, and failing this deposit in time, his suit shall stand dismissed with costs. Otherwise, parties shall bear their own costs. S.Q./M-426/L Appeal accepted.