1988 PLP 1337 (CLC)

Iftikhar‑ul‑Haq Khan for Appellants. C.M. Latif Rawn for Respondent No.l. Nemo for Respondent No.

2. Burhana, defendant‑respondent No.2, sold the land in dispute measuring 71‑ Kanals to Mutalli defendant‑respondent No.l ostensibly for Rs.12,000 by means of a registered deed of sale dated the 11th of May, 1960. On this the plaintiff‑appellants filed their suit for possession of the land by pre‑emption on payment of Rs.7,200 only. It was alleged that the balance of the sale price of Rs.4,800 was fictitiously inserted in the sale‑deed with a view to ward off the pre‑emptors. The vendee in his written statement admitted the superior rights of the plaintiffs to pre‑empt the sale. He however, asserted that the price of Rs.12,000 was fixed in good faith and actually paid and that this was also the market value of the land in suit.

2. After recording the evidence adduced by the parties, the Civil Judge, Sargodha, on the 19th of July, 1962, decreed the suit of the plaintiffs for possession of the land on payment of Rs.7,200 only. He observed that according to the recitals in the sale‑deed (Exh.D.l) a sum of Rs.6,000 was paid in cash by the vendee to the vendor at the time of the registration of the documents. The land was already under mortgage in the sum of Rs.1,200 which was kept in trust with the vendee for payment to the mortgagor against the redemption of the !and. The balance price of Rs.4,800 was stated to have been paid one month in advance before the sale‑deed. From the on the record the trial Court was satisfied that there was no cogent evidence for the payment of this sum of Rs.4,800 in advance. In the result the Court found that the price of Rs.12,000 was neither fixed in good faith nor actually paid. The learned Civil Judge was of the opinion that the evidence as to the market value of the land produced by the plaintiffs was divergent. He, however, relied on the remarks at page 405 of the Law of Pre‑emption in the Punjab by Ellis (1945 Edition) to the effect that, 'the best evidence of market value is the price paid'. He, therefore, assessed the market value of the land at Rs.7,200 and decreed the suit of the plaintiff for possession on payment of Rs.7,200 only. The vendee felt aggrieved and went up in appeal against the decree. On appeal the District Judge, Sargodha, on the 24th of September, 1963, affirmed the finding of the trial Court to the effect the price of Rs.12,000 for the land in dispute was neither fixed in good faith nor actually paid. But on a discussion of the mutations and Ausat Panjsala he was satisfied that the market value of the land in suit was at least Rs.12,

000. He, therefore, partly modified the decree of the trial Court and raised the pre‑emption money to Rs.12,000.

3. In these circumstances the plaintiff‑pre‑emptor has come up in appeal against the decree of the lower appellate Court against the increase in the pre‑emption money for the land in suit from Rs.7,200 to Rs.12,

000. The appeal was admitted to a full hearing by a Division Bench of this court on the ground that the Court below has acted illegally in fixing the market value of the land in suit on the basis of the sales effected subsequent to the date of the sale. But before me at the hearing ‑the learned counsel for the appellants was unable to cite any authority in support of this proposition. In fact, instances of sale of land similarly situated, both before and after the date of sale, afford a good criterion in ascertaining the market value of the property. Genuine sales of land could not be discarded merely for the reason that they related to a period subsequent to the sale‑deed in question. I, therefore, find no force in the contention.

4. On appeal the learned District Judge on a discussion of the copies of the mutation and Ausat Panjsala was in no doubt that the market value of the land in suit was at least Rs.12,

000. This is a finding of fact based on a discussion of mass of the documentary evidence adduced by the defendants. This finding is not vitiated by any error of law brought to my notice.

5. In this connection section 25(1) of the Punjab Pre‑emption Act, 1913 lays down that if in the case of a sale the parties are not agreed as to the price at which the pre‑emptor shall exercise his right to pre‑emption, the Court shall determine whether the price at which the sale purports to have taken place, has been fixed in good faith or paid, and if it finds that price was not so fixed or paid, it shall fix as the price for the purposes of the suit the market value of the land of property. In this connection section 27 further lays down that for the purpose of determining the market value, the Court may inter alia take into consideration the price or value actually received by the vendor from the vendee under the sale. In the instant case the Courts below have concurred in holding that it was not proved to their satisfaction that the price of Rs.12,000 was fixed in good faith or actually paid. But this is merely one of the criteria in ascertaining the market value of the land. Another important criterion in determining the market value laid down in section 27(e) is the value of the similar land or property in the neighbourhood. On a consideration of the entire evidence the learned District Judge was satisfied that the market value of the similar land in the neighbourhood was not less than Rs.12,

000. I, therefore, find no force in this appeal.

6. For the foregoing reasons this appeal is dismissed with costs. H . B. T. /B‑53/L Appeal dismissed.