' JAWWAD S. KHAWAJA, J.--- Muhammad Shah respondent-plaintiff filed a suit against the petitioner seeking possession of the suit-land through preemption. His case was that the respondent-plaintiff had purchased the property but had disguised the purchase as an exchange.
The plaintiff asserted a superior right of pre-emption, inter alia, on the ground that he owned land adjacent to the suit-land.
2. The suit was. Resisted by the petitioner, who, inter alia, contended that the plaintiff had failed to perform the requisite Talbs and also that he did not have, a superior right of pre-emption. The learned trial Court framed as many as 11 issues including that of relief. However, Issues Nos.1, 2, 4 and 9 were urged before me on behalf of the petitioner. These issues were framed in the following terms:-- "(1) Whether the plaintiff has superior right pre-emption? OPP.
(2) Whether the plaintiff has fulfilled legal requirements of Talbs? OPP
(4) Whether the pre-emption transaction is a sale and as such it is pre-emptible? OPP.
(5) Whether the value of the suit-land has been incorrectly mentioned in the relevant registered deed, if so, what is the proper value? OPD "
3. I have gone through the appellate judgment and the record, with the assistance of both learned counsel. Exh.P.4, which is a copy of the ask Shajra Kishtwar, shows that the plaintiff owned land in Khasra No.1172, which was contiguous to the suit-land comprised in Khasra No.1171. The finding of the learned appellate Court, therefore, that the respondent-plaintiff had succeeded in proving Issue No.1 is unexceptionable.
4. As to Talbs, both Courts below have concurrently held that the plaintiff had proved the performance of Talbs. The findings of the learned Courts below on this score are unexceptionable and were not seriously disputed before me.
5. As to Issue No.4, the learned trial Court held that the transaction between the petitioner and respondent No.1 was a.Bona fide exchange and was, therefore, not preemptible. This finding has been reversed by the learned appellate Court. I have gone through the reasoning of the learned appellate Court and find the same is not open to exception. The learned Court has examined in detail the oral evidence as well as an audio cassette while holding that the transaction between the petitioner and respondent No.2 was a sale but had been shown as an exchange in order to avoid pre-emption. The testimony of a local commission, namely, Syed Wajid Hussain, Advocate (P.W.5) and his report. (Exh.P.5) also show that the petitioner remained in occupation of the house, which allegedly was exchanged with the suit-land. The conclusion reached by the learned appellate Court in respect of Issue No.4 is based on the available evidence and cannot, therefore, be faulted.
6. The only question, which remains, relates to the value of the suit property. According to the petitioner defendant, its value was Rs.2,00,000 to Rs.2,50,000. The plaintiff's case was that the consideration paid by the petitioner was Rs.20,000. The learned appellate Court examined the Patwari Halqa as C.W.1 and relied on a statement of sales and determined the probable value of the suit-land to be Rs.76,000. Before me, however,. Learned counsel for the respondent-plaintiff conceded that the criteria mentioned in section 28 of the Pre-emption Act for determining market value had not been met through the evidence of the Patwari. He, however, submitted that he would not press the issue even if the price of Rs.2,00,000 mentioned by the petitioner-defendant is determined as the value of the land. Based on this submission, findings of the learned appellate Court on Issue No.9 are modified and it is held that the value of the law was Rs.2,00,000.
7. In the foregoing circumstances, this petition succeeds partially. The decree of pre-emption passed in favour of the respondent-plaintiff by the learned appellate Court is affirmed, subject to deposit, in the trial Court, of a sum of Rs.2,00,000, less any amount already deposited, within 30 days from today.
8. This is disposed of in the above terms.