1989 PLP 3167 (MLD)

AKHTAR HASSAN, J.--This R.FA. calls in question a decree, dated 15-12-1984 passed by the Civil Judge 1st Class, Lahore, whereby the respondents/pre-emptors' suit for pre-emption was decreed.

2. The appellants' stance in the written statement was that they were entitled to Rs.57,000 including the brokerage of Rs.12,000 as expenses incurred on registration of the sale-deed and were as well entitled to Rs.50,000 paid by them to the vendor's son as cost of the tubewell.

3. The trial Court allowed them Rs.45,000 as expenses of the sale-deed but refused to allow them the brokerage of Rs.12,000 and the additional amount of Rs.50,000 on account of purchasing the tubewell separately from the vendor's son. It held that the tubewell formed part of the main transaction and that there-was no idea of paying further sum of Rs.50,000 for it to some one other than the vendor.

4. The controversy in the present appeal was thus limited to the appellants' claim of being reimbursed for the alleged payment of (i) Rs.50,000 as cost of tubewell and (ii) Rs.12,000 as brokerage fee. Other objections particularly under M.L.R. 115 and estoppel were not pressed.

5. It was a sale concluded by a registered deed Exh.P.1 which admittedly included, among all other constructions on the land, even the tubewell for the total consideration of Rs.6,00,

000. Conversely it made no reference or reservation that the tubewell was instead owned by the vendor's son Faqir Muhammad, or that it would be paid for separately. To attempt to say subsequently, to the variance of the terms of the contract, that it did not belong to the vendor was, indeed something which could not be permitted to be introduced under sections 91 and 92, Evidence Act. It is in the evidence that the vendor installed it ten years earlier than the sale. The mere fact that the electric connection was in the name of his son would not necessarily mean that it really belonging to him. Ordinarily all fixtures formed part of the land and it was so described in the deed. The receipt Exh.D.1 was an after thought. Neither Faqir Muhammad himself nor was his father examined, nor was any attempt made to get the contents of the sale deed Exh.P.1 corrected suitably so as to reflect this post facto payment. Abrar Hussain (D.W.1)'s testimony in proof of the receipt Exh.D.1 was not inspiring confidence inasmuch as on his own showing Faqir Muhammad had not purchased it before him. He was expected to have known for certain that Faqir Muhammad was actually its owner. The appellant Muhammad Sharifs own statement equally did not mean much as he was a minor at the relevant time. If Faqir Muhammad had raised a dispute at the time of execution of the sale-deed, it behoved the appellant to have got it incorporated in the deed itself, but he offered no explanation for this unusual conduct. The contention was rightly spurned.

6. Brokerage of Rs.12,000 was yet another unusual demand. Barring the' appellant Muhammad Sharif's own statement on the point, no other witness` referred to it. Even the broker concerned was not examined. No precedent was cited to support the claim. It was also rightly refused.

7. The R.F.A. is dismissed except to the extent that costs throughout shall be borne by the parties. The decree in appeal is modified to this little extent. M.Y.H./M-1206/L Appeal dismissed.