1983 PLP (2) (CLC)

(2) Whether the plaintiffs have a superior right of pre‑emption O. P. P. (3) Whether the plaintiffs, have waived their right of pre‑emotion ? O. P. D. (4) Whether tire suit land load been mortgaged to defendant No. I for Rs, 13,500 before the sale in question ? If so, what is its effect O. P. D (5) Whether the sale was subject to equity of redemption ? O, P. D, (6) Whether the price of Ids. 23,000 was fixed in good faith or actually paid O, P. D. (7) If Issue No. 6 is not proved, then what is market value of the suit land? O. P. P. (8) Relief.

2. Issues Nos. 1. to 3 were decided in favour of the respondents while the remaining issues were decided in favour of the appellant. The learned Administrative Civil Judge, Gujranwala vide, his judgment dated 17th March, 1976 decreed the suit filed by the respondents subject to the mortgage on the payment of Rs. 23,000 that would come to Rs. 33,

000. Two appeals were filed against the aforesaid judgment and decree. The appellant in his appeal prayed for the dismissal of the suit while the respondents in their appeal prayed that they would not be liable to pay the mortgage money as the amount of 23.000 was inclusive of the same. The learned District Judge, Gujranwala vide his judgment dated 7th June, 1978 dismissed the appeal filed by Iftikhar‑ud‑Din and accepted the appeal filed by the respondents by holding that a sum of Rs. 23,000 was inclusive of the mortgage amount. Iftikhar‑ud‑Din the vendee has filed the present appeal who has challenged the judgment and has prayed for the dismissal of the entire suit or in the alternative that the mortgage amount be ordered to be paid apart from the consideration of Rs. 23,000.

3. The learned counsel for the appellant, in the first instance, ha raised a proposition which was not taken before the two Courts below and is in a way against the appellant. The proposition is that the mutation of inheritance by which Mst. Rahim Bibi and four others vendors had become the owners of the property had been set aside. On 4th December, 1975 apart from the aforesaid vendors Rahim Bibi and two others had been included as heirs who had also become the owners and as such the sale made by the original vendors had become void. This contention is liable to be rejected on more than one ground. In the first instance, this con tention was not raised before the Courts below, . second the right of pre. emption is a right of substitution. The appellant shall succeed to the transaction whether it was valid or not. It would be for the new1hy declared heirs to challenge the transaction and in case they attorn to the transaction made earlier, the sale cannot be challenged on this score by the vendee.

4. The next contention raised by the appellant was that it has not beets proved that the respondents are the collaterals of the vendors. The learned counsel for the respondents has from the pedigree table (Exh. P/4) read with the statement of Taj Din respondent appearing as P. W. 4 that the respondents were connected with the vendors by a common ancestor Boora. This evidence was not rebutted by the appellant and the findings of both the Courts below in this behalf cannot be challenged.

5. The only point that requires for consideration is the interpretation of the mutation Exh. P/3. By this mutation the sale had taken place and it is quite evident that the sale was subject to the mortgage as would be evident from the entry in, column 12 which may be reproduced below:- in the order of sanctioning mutation the sum of Rs. 23,0(0 had been also mentioned as the sale price and the mortgage amount had not been includ ed wherein. This fact is also supported from the statements of Bashir Ahmad and Nazir Ahmad two of the vendors. Even otherwise it cannot be imagined that the land measuring 24 Kanals and 13 Marlas would bel sold for only a sum of Rs. 23,000 6.The learned counsel for the respondents has submitted that a Local Commissioner was appointed to ascertain the market price and the appel lant had accepted the report filed by him. This contention has no force as the question of determination of the market price as required under sec tion 5 of the Pre‑emption Act would only be relevant in case it is proved that the consideration was not fixed bona fide and it had not been paid. As I have already held that a sum of Rs. 23,000 had actually been paid at the time of the sale and this amount was apart from the mortgage amount, therefore, the determination of the market value at Rs. 23,000 and the acceptance of the report of the Local Commissioner by not pursuing the objections to the report would not be relevant. The findings of the learned District Judge on issue No. 7 are hereby reversed and that of the learned Administrative Civil Judge, Gujranwala restored.

7. No other point was urged. The appeal is partly accepted and the judgment and decree of the learned District Judge is modified to the extent that the appellant would be entitled to pre‑empt the sale on the payment of Rs. 23,000 as the consideration and a sum of Rs. 13,500 as the mortgage amount. In case the respondents have already deposited the entire amount to pursuance to the judgment and decree of the learned trial Court, i. e. the amount of Rs. 23,000 and Rs. 13,500 they will not be under any obligation to deposit any further amount. However, i 1 the amount of Rs. 36,500 had not been deposited the respondents shall now deposit the same within two months failing which their suit shall stand dismissed. The appellant shall be entitled to adjust Zar‑e‑Punjam deposited initially. The parties are, however, left to bear their own costs. K.M.A. Appeal partly accepted.