P L D 1984 Peshawar 253 (PLP)

(3) Whether the suit is bad for partial pre‑emption ? (4) Whether the plaintiff is estopped to bring the present wit ? (5) Whether the suit is not correctly valued for the purposes of court‑fee and jurisdiction ? (6) Whether a sum of Rs. 1.14,660 has been fixed in good faith or paid as sales consideration ? (7) Whether the plaintiff has got a superior right of pre‑emption ? (8) Whether the plaintiff is entitled to the decree prayed for ? (9) What is the market‑value ? (10) Relief ? After recording the evidence of the parties as they wished to adduce the learned trial Judge decided issues Nos. 1, 2, 3 and 4 in favour of the plaintiff. On issue No. 7, the learned trial Judge held that the plaintiff has superior right of pre‑emption in respect of land measuring 157 Kanals 1 Marla out of Kbasras Nos. 278, 281, 432/1, 412, 410, 431, 430, 263, 264, 233, 234 and 235 out of Khata No. 103 and Khata No. 84 situate in village Miali and that with regard to the rest of the suit, land he had no such right of pre‑emption. On Issues Nos. 6 and 8, the learned trial Judge held the market price of the said land at Rs. 62,

820. Accordingly :a decree for possession through pre‑emption of 157 Kanals l Marla on payment of Rs. 62,820 eras granted to the plaintiff: Feeling aggrieved bye this judgment and decree the plaintiff'/respondent went in appeal to the Court of District Judge, D.

1. Khar. who vide his judgment and decree dated 25‑11‑1982 accepted the appeal to the extent that the market price of the land decreed was: fixed at Rs. 39,262 instead of Rs. 62,820 ; hence the present revision petition by the defendant‑vendee.

4. I have heard the learned counsel for the parties and have gone through the record of the case. The only question for determination in this civil revision is price of the suit land. Learned counsel for the petitioner contended that since the land was sold through a registered sale‑deed, it was rightly held by the learned trial Judge that the price of the land was that paid before the Sub‑Registrar. Under section 58 of the Registration Act presump tion of truth is attached to the endorsement of the Sub‑Registrar on the back of sale‑deed but it is also true that this presumption is rebuttable. In Malik Wahid Bakhsh v. Ch. Muhammad Shafi (P L D 1976 Lah. 1069), it was held that :‑‑ "So far as the endorsement of the Sub‑Registrar on the back of the sale‑deed is concerned, the presumption of truth is attached thereto but the same is rebuttable. Even in the presence of such endorsement it is always open to a pre‑emptor to show that the sale price as entered in the endorsement is not the genuine actual sale price. If he proves to the satisfaction of the Court that market‑value of such property is muchless than the price entered in the sale‑deed then onus will shift to the vendee to show as to why he paid so much amount in excess of the market price being the actual price. It is possible that fictitious amount of price may be shown in the sale‑deed by the parties concerned and the same may also be paid before the Registrar but if it is otherwise found to be fictitious one that does not mean that such entry in the sale‑deed or endorsement of the Registrar to that effect is sufficient to constitute payment of price for the purpose of Pre‑emption Act. In such a case genuine payment is to be ascertained which can be determined only by taking all the relevant circumstances into consideration. This view is further represented in Syed Abid Hussain Shah etc. v. Jalal Din etc. (P L D 1981 Lah. 349) wherein the Honourable Judges of Division Bench held t ha presumption attached to the endorsement made by the Registering Officer is rebuttable. Thus, the contention of the learned counsel for the petitioner‑vendee that the endorsement of the Sub‑Registrar on the registered sale‑deed cannot be questioned finds no play for all practical purposes. If from record it is proved that the excessive amount was paid it can be validly presumed that it was so paid with a view to burden the prospective preemptor with extra charges in case of pre‑emption.

5. The price of the suit land according to the statement of the Patwari on the basis of five‑yearly average comes to Rs. 5,078.18. The plaintiff‑pre emptor in the plaint fixed the market value of the suit land at Rs. 5,

000. In the registered sale‑deed, however, the sale price of the suit land has been shown as Rs. 1,14,

660. There is obviously alarming. disparity between the average as per the calculation of the 5 years and the one shown se sale‑consideration. It was the result of the difference as shown above that the learned trial Judge appointed a Commissioner to ascertain the market value of the suit land. The Commissioner so appointed fixed the market value of the suit land at Rs. 250 per Kanal. This report of the local Commissioner was not objected to by either of the parties. In Khadam Hussain and others v. Gulab and another (P L D 1954 Lah. 471), it was held that : ‑ "In our opinion when it is alleged that the sale price is fictitious and put into the deed for the purpose of defeating pre‑emption, it is open t the pre‑emptor to give evidence to show that the market price is fat below than stated to the sale‑deed. If he gave such evidence to the satisfaction of the Court, the latter is quite justified in arriving at it own calculation as to what is the real consideration, and this not withstanding, that it is proved that the amount stated in the deed was paid before the Sub-Registrar. It is of course open to the vendee to show that there were special circumstances why he was ready to give and he did give the actual price mentioned in the deed." Nowhere the vendee‑petitioner has admitted payment of the excessive amount muchless the state or to prove that he paid the excessive amount under some special circumstances or for particular considerations. As stated earlier the record does suggest that the amount if at all paid before the Sub‑Registrar eras highly non‑comformable with .the market‑value. Once it was proved that vendee‑petitioner did pay the excessive amount it was for him to justify through reliable evidence the payment thereof in a bona fide manner. He having failed to lead any evidence in support of the excessive amount having been paid, the endorsement of the Sub‑Registrar has rightly been rebutted by the learned Appellate Court, It is now well‑settled that in suits of pre‑emption report of local Commissioner facilitates the Court in formulating its opinion and the appointment of Commissioner in such circumstances advances the cause of justice. In Rehman Dad and another v. Major Raga Sajawal than etc. (1976 S C M R 350), it was held :‑‑ "In a case of this nature the report of the Local Commissioner subject to the objection if any would have facilitated the Court to formulate its opinion on the question and as such it would have been judicions exercise of discretion if the application was allowed. The delay was, therefore, not a factor which could have come in the way of exercise of discretion for such a course would have advanced the cause of justice." In the instant case no objection whatsoever was raised by the vendee defendant and keeping in view the disparity in the amount paid before the Sub‑Registrar and the actual market value of the suit land, it was incumbent upon the trial Judge to have given weight to the report of the Local Commissioner. The learned District Judge, therefore, rightly placed reliance on the report of the Local Commissioner. I see no material irregularity or illegality on the part of the learned lower Appellate Court.

6. On the view of the matter that I take, I see no reason to interfere with' conclusion arrived at by the learned District Judge and accordingly dismiss this revision petition but keeping in view the fact that two Courts below were at variance with regard to the market price of the suit land, I would leave the parties tit bear their own costs. M. Z. M. Revision dismissed.