1994 PLP 1297 (CLC)

(iv) Whether ostensible price of Rs.12,000 was not bona fide fixed and actually paid? OPP (v) If issue No. 4 is proved, what was the market value of the property in dispute on the date of its sale? OPP. (vi) Whether plaintiff by his own conduct is estopped to bring this suit? OPD (vii) Relief. After recording evidence of the parties and perusing the same the trial Court decided issues Nos. 1 to 3 in favour of the plaintiff. On issues Nos. 4 and 5 it was held that the disputed land was sold for a sum of Rs.12,

000. However, issue No. 6 relating to estoppel was decided against the plaintiff and the suit was dismissed vide judgment and decree dated 23‑JO‑1970. The respondent filed an appeal which was accepted by the learned Additional District Judge, vide judgment and decree dated 14‑1‑1972. The appellate Court reversed the findings of trial Court on issue No. 6 and decreed the suit in favour of the respondent on the ground of collateral ship.

3. The appellants' learned counsel contends that the trial Court had rightly recorded findings on issue No. 6 against the respondent and that the appellate Court grossly erred in reversing the same. He submits that the appellate Court had discarded the statements of the defendant's witnesses on the ground that they belong to a different village, although the land is situated in Village Naushera. He points out that in fact the land is situated in Village Mari Waraichan. He adds that in two Panchaits; one convened at Village Naushera and the other at Gujrat the plaintiff/respondent had refused to purchase the land. He further submits that the two judgments reported as Natha Singh v. Sundar Singh (AIR 1926 Lahore 10), Indian Cases Vol. 92 of 1926 page 258) and Qaim Din v. Said Ahmad (PLD 1967 Lahore 1171) were wrongly relied upon by the appellate Court. He points out that in the reported judgments the land was actually sold at the lesser price and higher price was shown in the sale transactions. However, in the present case the land was actually sold for Rs.12,000 and the same price was .admitted as correct by the respondent/plaintiff.

4. On the other hand respondent's learned counsel submits that the finding recorded on issue No. 6 relating to waiver is one of pure fact which could not be disturbed in the second appeal. He places reliance on the cases of Mehr Kamir v. Wali Muhammad and 5 others (PLD 1972 Lahore 287), Hafiz Hasan Muhammad v. Abdul Hamid (PLD 1982 SC 159). He further submits that the present case is securely covered by the judgments in the case of Qaim Din v. Said Ahmad reported in PLD 1967 Lahore 1171 which according to him was rightly relied upon by the learned appellate Court. Lastly he submits that the plaintiff never accepted Rs.12,000 to be correct sale price of the disputed land. He adds that there is no statement of the respondent or his counsel on the record in this connection.

5. After hearing the learned counsel for the parties, I find that there is considerable force in the arguments of the appellant's learned counsel. The appellate Court not only misread the record but also rejected the appellant's evidence on the question of estoppel on entirely untenable grounds and reversed the findings of the trial Court on issue No. 6 without adequately meeting the reasoning advance by it. The Appellate Court wrongly mentioned in para. 6 of the judgment that the disputed land was situated in Village Nowshera. The disputed land is actually situated in Village Mari Waraichan. Due to the above error, the Appellate Court proceeded to discard the appellant's witnesses on the ground that they belonged to the other villages Kassoki and Mari Warraichan and not Village Nowshera. In order to discharge the burden of proof relating to issue No. 6 the appellant/defendent had produced the following witnesses:‑ Fazal Ahmad D.W.1, Malik Allah Rakha D.W.2 Ghulam Rasool D.W.3, Bashir Ahmad D.W.4, Faqir Hussain D.W.5, Ch. Muhammad Anwar, Advocate D.W.7, and Maqsood Elahi (defendant No.2) P.W.8. D.Ws. 2 to 5 have fully supported the appellant's version that they had offered the land to the respondent/plaintiff but he had refused to purchase the same. At first, the offer was made in the Punchayat held at Village Nowshera and thereafter at the place of Ch. Muhammad Anwar, Advocate who also appeared as D.W.7 and supported the appellant's claim. The respondent/plaintiff, in his own statement as P.W.5 admitted that he had refused to purchase the land but advanced the reason that the land was sold at Rs.8,400 hence he had refused to purchase it for Rs.12,000 (mentioned in the sale‑deed). No such suggestion was made to any of the DWs. who had firmly stated that the respondent/plaintiff had refused to purchase the land. The appellant had fully discharged the onus of issue No. 6 and it was the burden of the respondent‑plaintiff to prove that the land was actually sold for lesser price and that inflated price was shown in .the sale‑deed. He failed to prove his plea, rather his learned counsel admitted before the trial Court that the evidence on the record proved that the land was sold for Rs.12,000 and that the said price was bona fidely fixed and actually paid by the appellants. Therefore, the judgment in the case of Qaim Din v. Said Ahmad and another (PLD 1967 Lahore 1171) relied upon by the Appellate Court, was not applicable in the instant case. For the foregoing discussion, I accept this appeal, set aside the judgment and decree of the Appellate Court and restore that of the trial Court, leaving the parties to bear their own costs. M.Z.S./A‑567/L. Appeal accepted.