1987 PLP 2889 (MLD)

Ss.4 & 15--Civil Procedure Code (V of 1908), S.115--Pre-emption money--When payment of sale price is established, question of market value of property, held, could not be gone into. Malik Hussain and others v. Lala Ram Chand and others PLD 1970 S C 299 rel. Abdul Waheed Butt for Petitioner. Aftab Iqbal Chaudhary for Respondent. Date of hearing: 25th October, 1987. This revision petition under section 115 C.P.C. was directed against the judgment and decree dated 15-6-1983 of Malik Khizar Hayat, Additional District Judge, Gujrat, whereby he accepted the appeal of the pre-emptor-respondent by reducing the pre-emption money from Rs. thirty thousand to Rs. twelve thousand

2. The facts necessary for disposal of the revision petition are that Abdul Hanif respondent-plaintiff filed a suit for possession through pre-emption respecting agricultural land described in the plaint which was purchased by the petitioner vide registered sale-deed dated 216-10-1978. It was alleged that the sale was effected for Rs. twelve thousand only and in the sale-deed fictitious sale price of Rs. thirty thousand was mentioned. The petitioner resisted the suit in the trial Court but the learned trial Court after recording the evidence of the parties decreed the suit on payment of Rs. thirty thousand. This was done vide judgment and decree dated 28-7-1982. On first appeal the learned Additional District Judge, however, reduced the amount from Rs. thirty thousand to Rs. twelve thousand observing that the receipt Ex. D1 cannot be relied upon as the same was neither mentioned in the written statement nor in the sale-deed Ex. D2 nor the same was stamped. He' further observed that even the date of execution of the receipt has not been mentioned in the receipt Ex. D

1. He discarded this receipt on the ground that the same was unregistered one. The learned appellate Court also relied on the statement of PW2 Allah Ditta vendor as he deposed that he had received Rs. twelve thousand only and not Rs. thirty thousand mentioned in the sale-deed. The receipt was proved by producing Muhammad Abbas DWI the scribe of the receipt and Muhammad Sadiq DW2 the attesting witness of the receipt but this evidence was discarded observing that no care, appears to have been taken to get the receipt executed through any respectable person or a recognized person and that the receipt was not got entered in any register.

3. I have heard the learned counsel for the parties and have also gone through the record. The main plea of the learned counsel for the petitioner was that the learned first appellate Court acted illegally in discarding the evidence produced by the vendee-petitioner. It was added that the learned appellate Court while reversing the findings returned by learned trial Court either misread the evidence or failed to read material pieces of evidence. There is merit in this submission. The learned first appellate Court appears not to have seen the receipt Ex. D

1. It bears the revenue stamps and date of its execution has also been noted therein. Moreover the receipt does not require to be registered. This was conceded even by the learned counsel for the respondent before me. The receipt could not be discarded for the reason that it was not mentioned in .the written statement as evidence which is to be produced in support of the pleas taken in the pleadings is not to be mentioned. The sale-deed A Ex.D2 makes a mention of the fact that Rs. Eighteen thousand had been received earlier in the presence of the witnesses. The receipt Ex. D1 was duly proved on record by producing Muhammad Abbas, the scribe and Muhammad Sadiq the attesting witness. Nothing was pointed out in their evidence to show that their evidence merited to be discarded. On the other hand learned appellate Court erred in relying on the testimony of Allah Ditta PW vendor by observing that though he was left with no subsisting interest in the property yet no reason existed for him to make a false statement. The learned appellate Court failed to notice that Allah Ditta in cross-examination had admitted that the petitioner had taken his son to Iran and that he got his son imprisoned in jail for three months. He further admitted that this incident occurred one month after the sale in question. Though Allah Ditta PW denied that because of this occurrence he was making a false statement yet his words cannot be accepted as obviously he felt aggrieved as against the defendant. Moreover he cannot be believed as the endorsement made by the Registrar on the sale deed makes mention of the fact that the contents of the deed were read over to the vendor who then admitted the contents as correct and true. This endorsement carries presumption of truth and no reliable evidence was produced to rebut the presumption arising therefrom. The payment of the sale price having been established there was no need to go into the question of market value of the land. See Malik Hussain and others v. Lala Ram Chand and others P L D 1970 S C

299. The learned appellate Court did not accept the valuation statement Ex.P6 produced by patwari and did not determine the market value observing that the value claimed by the respondent i.e. Rs. twelve thousand is to be upheld. The finding that the sale price of Rs. thirty thousand was not actually fixed and paid was returned due to misreading and non-reading of evidence on record. The learned appellate Court thus erred in law in reversing the finding of the trial Court.

4. For the reasons given above this revision petition is accepted, the judgment and decree dated 15-6-1983 is set aside and the judgment and decree of the learned trial Court is restored. The balance of the sale price i.e. Rs. eighteen thousand shall be deposited in the trial Court by or before 3-1-1988 failing which suit of the respondent shall stand dismissed. The respondent shall also pay the costs of the petitioner throughout. M.Y.H./M-457/L???????????????????????????????????????????????????????????????????????????????? Petition accepted.