1988 PLP 1751 (CLC)

MUHAMMAD ASADULLAH, J.‑‑The appellant filed a suit for possession through pre‑emption of the suit land, measuring 72 kanals and 12 marlas, situated in Chak Nos. 425/J.B., Toba Tek Sin'gh, on payment of the price at which the same was sold i.e. Rs.2,19,

295. The said land was sold by Ghulam Qadir in favour of the respondent through registered sale deed dated 15‑11‑1979. The appellant alleged that he is a brother of the vendor and as such his right of pre‑emption was superior. He also alleged that the vendee had cut and sold certain trees out of the land in dispute and he was entitled to the deduction of the price thereof from the ostensible price of Rs.2,19,

295. The suit was contested by the respondent on the ground that the appellant was estopped from filing the suit; that he had waived his right of pre‑emption; that his right of pre‑emption was not superior; that a sum of Rs.2,19,295 had been fixed in good faith and actually paid as price of the suit land; that the same was the market value; and that he, the vendee, had made improvements in the land and in case of the success of the appellant he was entitled to get the expenditure incurred on such improvements in addition to the price of the land. The following issues were framed: (1) Whether the plaintiff is estopped by his conduct to file the suit? O.P.P (2) Whether the plaintiff has waived his right of pre‑emption? O.P.P. (3) Whether the plaintiff has got superior right of pre‑emption? O.P.P. (4) Whether the sum of Rs.2,19,295 was fixed in good faith or actually paid as sale price of the suit land? O.P.P. (5) If not, what was the market value of the suit land at the time of impugned sale? O.P.P. (6) Whether the vendee had made improvements on the suit land? If so, to what extent and of what value? O.P.P. (7) Relief. The learned Civil Judge, Toba Tek Singh, dismissed the suit of the appellant on account of the decision of issues Nos.l and 2, vide judgment and decree dated 1‑12‑1983, holding that the appellant had waived his right of pre‑emption and was, therefore, estopped from filing the suit. It may be added that the payment of Rs.2,19,295 was admitted by the parties before the learned trial Court and in fact it had not been disputed in the plaint and as such issues Nos.4 and 5 were unnecessarily framed. The right of pre‑emption of the appellant was also admitted before the learned trial Court. On issue No.6 he held that no improvements had been made by the respondent and as such he was not entitled to any cost thereof. The appellant has assailed the said judgment and decree through this regular first appeal. We have perused the record and have heard arguments.

2. The respondent had disputed the valuation of the suit and the appeal. However, on examination of the Jamabandi he concedes that the valuation of the suit as also of the appeal is correct.

3. Only the findings on issues Nos.i and 2 are challenged before us and even the findings on issue No.6 are not disputed by the respondent before us. The case of the respondent is that before making the sale the vendor, Abdul Qadir, had issued proclamation in two newspapers, namely, daily Business Report, Faisalabad, Ext. D.3 and the daily Wafaq, Lahore, Ext. D.4. He also contends that the intention to sell was proclaimed through beat of Drum through the local Tehsildar vide report Roznamcha dated 21‑10‑1979, Ext. D .1, and report of the Patwari etc., Ext. D.2. He also alleges that the intention to sell was also proclaimed on loudspeaker through a Mosque of the village concerned. He contends that apart from that the pre‑emptor was asked by some of the PWs, on the asking of the vendor, that he may purchase the land if he intended to do so. The case of the respondent, therefore, is that in spite of such proclamations and intimations the appellant did not come forward to purchase the land and in this manner waived and lost his right of pre‑emption. Statutory notice to a prospective pre‑emptor can be issued under section 19 of the Punjab Pre‑emption Act, 1913. Such a notice has to issue through a civil Court as provided for therein. Admittedly, no such notice was issued by the vendor or the vendee to the appellant. There is no dispute that notice to estop a pre‑emptor from filing a suit is not the only one which is prescribed in section 19 ibid . There can be a notice to him by any other means including proclamation in a newspaper, proclamation through beat of drum and announcement on a loudspeaker through a mosque. So is provided in Baqri and 4 others v. Salehon and 3 others (P L D 1972 SC 133) and both the parties rely on the same. Therefore, in accordance with the said dictum of the Honourable Supreme Court, notice could issue to the appellant through such modes and even orally. However, the real question to be seen is as to what sort of information had to be imparted to prospective pre‑emptor so as to estop him from filing a suit. Although the notice was not issued in accordance with the provisions contained in section 19 ibid and although, as already said, that is not the only mode of notice yet the principles laid down therein cannot be ignored. Section 19 ibid provides that a notice issued under the said section shall also contain the price at which the property is to be sold to the prospective vendee. For a notice under section 19 ibid the mentioning of the said price is mandatory. On the same principle whatever may be the nature of the notice, written or oral, it should carry in it the price at which the vendor proposes to sell his property to the prospective vendee. The learned counsel for the respondent has argued that it is not necessary that the price should be contained in a notice other than a notice under section 19 ibid. Even if his argument could have some weight that will not mean that a wrong or an inflated price should be conveyed to the prospective pre‑emptor. Ghulam Ahmad, DW.2, in whose presence the sale‑deed was registered and who states that he had gone to the appellant to offer the land to him before the sale in dispute, has stated that at that time the vendor had demanded a price of Rs.30,000 per kills. However, the land in dispute has been sold in favour of the respondent at about Rs.24,000 per killa. The other DWs also allegedly went to the appellant for the same purpose at about the same time, and therefore, it is clear that even if prior intimation of the sale was given to the appellant that was given with the rate of sale at Rs.30,000 per killa and not about Rs.24,000 per kills. Accordingly, even if the evidence of the DWs is believed that will go against the respondent and will operate to mean that the vendor quoted a much higher price to the appellant so as to keep him out of the picture.

4. No price whatsoever was mentioned in the notices issued through the said two news papers and in the reports relating to the proclamations through beat of drum. Similarly, Hafiz Muhammad Mustafa, DW.4, who is Imam Masjid, does not say that the price was mentioned in the proclamation made on the loudspeaker from the Mosque. The evidence relating to the notices issued in the newspapers, through beat of drum and through loudspeaker has also to be read with and interpreted keeping in view the statements of the PWs. As already mentioned above, according to D.W.2 the price conveyed to the appellant was at Rs.30,000 per kills. Therefore, the said notices in the newspapers etc. also mean that the intimation to the appellant was given according to the said rate. As pointed out earlier, even if is assumed that it is not necessary to mention the price of the land in a notice given otherwise than under section 19 ibid it is not at` all permissible that such a notice should convey a wrong and inflated price to the prospective pre‑emptor. A prospective pre‑emptor may be willing to purchase the land at normal price but he may not be willing to purchase the land at an inflated rate. In other words a prospective pre‑emptor may come forward to purchase the land if it is sold at normal price and may refuse to purchase the same if it is being sold at an inflated rate of higher price. Therefore, the refusal of the appellant to purchase the land at Rs.30,000 per kills, even if it was so made, does not mean that he refused to purchase the land at Rs.24,000 per kills. Accordingly this is a case different from a case in which no price in the notice is mentioned but it is a case in which wrong and much higher price was, if at all, conveyed to the appellant. Such a notice is no notice in the eyes of law and in fact even if given is a mischievous one having no sanctity in the eyes of law. In any case such a notice cannot estop a pre‑emptor from enforcing his right of pre‑emption at the normal rate. It may be added that the appellant did not dispute the sale price at Rs.24,000 per kills or the total price of Rs.2,19,295 in the plaint which was filed by him on 15‑10‑1980. This would also mean that if the land had been offered to him at the said price before the sale in dispute, he would have come forward to purchase the same instead of the respondent. Accordingly, the appellant never waived his right of pre‑emption. It may be added that this is the conclusion if we totally believe the evidence, oral and documentary, that has been produced by the respondent himself. In these circumstances the evidence produced by the parties need not be discussed. We, therefore, hold that no valid notice to the appellant was given by the vendor or vendee prior to the sale in dispute. He, therefore, has not waived his right of pre‑emption and is not estopped from filing the suit. The decision of the learned trial Court on issues Nos. 1 and 2 is reversed and the same are decided in favour of the appellant.

5. As a result the judgment and decree dated 1‑12‑1983, under appeal, are set aside. A decree for possession of the suit land through pre‑emption is passed in favour of the appellant and against the respondent on payment of Rs.2,19,

295. The appellant shall deposit the said amount, less the 1/5th of pre‑emption money, already deposited by him, on or before 10‑3‑1989 failing which his suit shall stand dismissed with costs. S.Q./G‑113/I Appeal accepted.