1983 PLP 2320 (CLC)

Iftikharul Haq Khan for Petitioners. Malik Talib Hussain for Respondents. Date of hearing s 23rd October, 1979. This second appeal arises out of a pre‑emption suit filed by the respondents. The learned trial Court decreed the suit against the appellants on payment of Rs. 25,000 as sale consideration vide judgment and decree dated 30th July, 1964. Feeling aggrieved thereby, both the parties (i.e. vendees as well as pre‑emptors) assailed that decree of the trial Court in appeal before the learned District Judge. The vendees filed an appeal challenging the correctness of findings of the trial Court re garding the superiority of pre‑emption right while pre‑emptor challenged the finding of the learned trial Court regarding the fixation of sale consideration as Rs. 25,

000. Both the appeals were heard and disposed of by the learned Additional District Judge vide judgment and decree dated 6th June 1965, whereby the appeal filed by Muhammad Hayat Shah pre‑emptor‑ was accepted, holding Rs. 21,135 as the sale price of the suit land while the appeal filed by Noor Khan, etc., veadee/defen dants was dismissed.

2. The vendees/defendants have assailed the judgment and decree of the lower appellate Court to the extent of determination of sale consideration in this second appeal and prayed for the restoration of filing of the trial (Court on issue No. 4, according to which RS.25000 fixed as the sale price of the suit land.

3. The sole qucsti0l; which requires adjudication in this appeal whether the finding of the leaned lover appellate Court fixing Rs. 21,135 as salt price of the suit land is erroneous and liable to be set aside in the appeal.

4. I have given my earnest consideration to the contentions pressed by the learned counsel for the parties, perused the impugned judgment and scanned the evidence adduced on the file. From the perusal of the file it is manifestly clear that the learned lower appellate Court While modifying the finding of the learned trial Court on issue No. 4, solely relied upon two instates of sale contained in Exh. P. 9 and P 10 which are the certified copies of ‑mutations of the sale being Nos.' 182 and 183, respectively and relate to transactions of sale by means of respective registered Sale‑needs ,‑sated 13th April, 1960 and 22nd April, 1960 pertaining to dome a9ricuftural land recorded in Khewat Nos , I4 to 18. 21 and 22, The impugned mutation of sale bearing No. 186 was attested on 1 gtl1 September, 1961, i.e. 1 years after the attestation of Exh. P. 9 and Exh. P, 10, with regard to the suit land located in a different Khewat bearing No. 24 in the same village. The trial Court came. to the conclusion that the suit land was sold for Rs. 25,000 but the learned lower appellate Court while relying upon the instances of earlier .safes vide Exh. P. 9 and Exh,. 10 reduced the sale consideration by Rs.3865 in appeal without keeping in view the time factor. He utterly failed to take the note of the hard fact that during the intervening period of one send a half years which elapsed between the aforesaid earlier sales arid the impugned sale, the price of suit lard like other things would have usually increased, at least, by the amount reduced in appeal i.e. Rs.3,865.

6. Apart from ibis, the learned lower appellate Court ignored the oral evidence ignored by the appeal ]ant on the record without an legal justification. There is nothing ors the record to disc and the testimony ,t; of D. iii. 2 Patwari Halqa, and p. .,Y 3 Manager of the vendor who unequivocally stated .t hat the suit land was mutated on payment of Rs. 25,0 as sale consideration. In view of what has been discussed above. I, therefore, conclude that the finding of the learned lower appellate Court on Issue No. 4 is absolutely erroneous and is not, based upon any evidence and the same is set aside. I also hold that the suit land was sold in consideration of Rs. 25,

000. The appeal resultantly, is hereby accepted and the respondents are directed to further deposit Rs. 3,865 as outstanding sale price with the trial Court till 22nd January, 1980 failing that their suit shall stand dismissed. . Parties are left to bear their own costs. M.Y.H. Appeal allowed.