MUHAMMAD KHALID MEHMOOD KHAN, J.-The respondent No,2 filed a suit against the petitioner for possession through pre-emption claiming that the pre-empted land was purchased by the petitioner against consideration of Rs,95,000 but to defeat the right of respondent to pre-empt the sale he has got recorded the price of land as Rs,8,00,000 and got attested mutation No,2832 in his favour. Along with the suit the respondent No,2 filed an application for determination of probable value of the suit property for the purposes of Zar-e-Soem. The petitioner has also filed different mutations showing the probable value of the suit land. The learned Civil Court directed the respondent to deposit Rs,2,66,667 being Zar-e-Soem of the value of land shown in the impugned mutation. The respondent assailed the said order through a civil revision which was allowed by the learned appellate Court vide order dated 28-10-2008, hence, the present writ petition.
2. Learned counsel for the petitioner submits that the learned trial Court has rightly directed the respondent to deposit 1/3rd Zar-e-Soem by considering the amount of sale on the basis of a sanctioned mutation. He further submits that petitioner has placed on record the evidence that he deposited mutation fee on the amount of Rs,8,00,000 and also paid Municipality Tax on the said amount. Both the challans are available on record and as such unless the respondent establishes his allegation that the value of land is Rs,95,000 by adducing evidence the price of the land will be deemed to be Rs,8,00,000. He further submits that fixation of probable value of the property is only required when the sale price is not mentioned in the sale deed or in the mutation or when the court comes to the conclusion that the amount of consideration is shown excessive.
3. Learned counsel. For the respondent submits that respondent has placed on record certain mutations of the area where the disputed land is situated showing the probable value of the land and as such the learned appellate Court has rightly set aside the impugned order and directed the learned trial Court to hold appropriate inquiry considering the data placed on record by the parties under section 24 of the Punjab Preemption Act, the learned Civil Court is bound to pass an order to deposit Zar-e-Soem. Section 24 is reproduced here for further clarification:-- "24. Plaintiff to deposit sale price the property.--(1) In every suit for pre-emption the Court shall require the plaintiff to deposit in such Court one third of the sale price of the property in cash within such period as the Court may fix: ' Provided that such period shall not extend beyond thirty days of the filing of the suit: ' Provided further that if no sale price is mentioned in the sale deed or in the mutation, or the price so mentioned appears to be inflated, the Court shall require deposit of one-third of the probable value of the property.
(2) Where the plaintiff fails to make a deposit under subsection (1) within the period, fixed by the Court, or withdraws the sum so deposited by him, his suit shall be dismissed.
(3) Every sum deposited under subsection (1) shall be available for the discharge of costs.
(4) The probable value fixed under subsection (1) shall not affect the final determination of the price payable by the pre-emptor.
4. The second proviso of section 24 shows that it will come into operation when no sale price is mentioned in the sale deed or in the mutation. The Court has to rely on its own judgment after holding preliminary inquiry under section 24 the maximum time available for depositing Zar-e- Soem is 30 days from filing of suit and not beyond, but it is clear that Court has to determine through a process of approximation the probable value of the pre-empted sale if the amount of sale is not mentioned in the document of title. It is thus clear that Court had to determine the probable value or the property only if no sale price has been mentioned in the sale deed or seems to be inflated in the mutation, meaning thereby that if the sale consideration was mentioned in the document of title, the court had no discretion in the matter and is bound to pass order to deposit Zar-e-Soem according to subsection (1) of section 24 of the Punjab Pre-emption Act. In the present case the petitioner no doubt has mentioned in his plaint that actual value of the pre-empted land is Rs,95,000 but to defeat the right of respondent to preempt the sale a fake and fictitious amount of Rs,8,00,000 has not been alleged. The allegation of petitioner about the price is only an allegation unless proved after recording the evidence. Further the two challan forms available on record shows that petitioner has deposited the mutation fee and other municipal tax on the basis of actual sale price i.e, Rs,8,00,000. The direction to deposit Zar-e-Soem is mandatory under section 24 of the Punjab Pre-emption Act, the said amount is ultimately adjustable towards the final decree and in case of failure of the suit, the said amount is refundable to the plaintiff/respondent, so the probable evaluation of the price of sale in the present case is not warranted. The learned trial Court after examining the evidence available on Court record was justified in ordering the respondent to deposit Zar-e-Soem on the basis of sale amount mentioned in the mutation. The mutation is a public document, the certified copy, of which is available to every one. No doubt the presumption is rebutable, but that is after recording the evidence. The deposit of Zar-e-Soem is the first qualification of the plaintiff to proceed with the case as without depositing Zar-e-Soem the suit cannot proceed and is liable to be dismissed after expiry of 30 days commencing from the date of institution of the suit. Learned counsel for the respondent has placed reliance on a judgment Muhammad Akbar v. Muhammad Malik and another PLD 2005 Lahore 1. In this case the dispute was that the purchaser was claiming that he has purchased the property for Rs,1.5 million, whereas the pre-emptor was claiming the value of the pre-empted land as Rs,95,000. The learned trial Court directed the pre-emptor to deposit 1/3rd of amount of Rs,1.5 million, but before the defendant appeared the plaintiff filed an application for correction of order reiterating his stance that actual value of the land is Rs,95,000 and the learned trial Court after issuing of notice to the respondent reviewed his order and directed the pre-emptor to deposit 1/3rd of Rs,95,000. The said order was assailed through revision which was allowed, but it was held that while determining the probable value of the property, an appropriate inquiry is required by considering the data placed on record by both the sides. In the present case the data was available before the revisional Court or even before the learned Civil. Court as the respondent filed an application along with the suit for determination of probable value and the learned trial Court alter considering the data has rightly passed an order, hence the order passed by revisional Court was after preliminary enquiry. The revisional Court was not justified to direct the learned trial Court to hold a detailed inquiry for ascertaining the probable value of the land. The learned Civil Court has already decided the application after considering the data available before him and as such the said judgment relied upon by the respondent is distinguishable. The other judgment relied upon by the learned counsel for the respondent is Muhammad Din and others v. Jamal Din and others (2007 SCMR 1091). It is held in this case "it is settled principle of law that the learned Courts entertaining the suits under the Punjab Pre-emption Act, ought to examine the plaint and any material accompanying it while passing orders for deposit of 1/3rd and the amount payable and directed the parties to deposit the said amount in order to avoid complication later on". In this case the honourable Supreme Court of Pakistan has itself enhanced the value of Zar-e-Soem from the value ascertained by the learned Court below.
5. Learned counsel for the petitioner has relied on Abdul Wahid and 8 others v. Sardar Ali and 2 others (PLD 2000 Lahore 190), Sahib Dad Khan v. Lal Khan Niazi (2006 YLR 73), Ghulam Yasin and others v. District Judge and others (2002 YLR 1580) and Awal Noor v. District Judge Karak and 8 others (1992 SCMR 746).
6. In the present case the data was available with the learned Civil Court and the learned Civil Court after assessing the data available with him fixed the value of pre-empted land as Rs,8,00,000 which was mentioned in the mutation of sale and directed the pre-emptor to deposit 1/3rd of the said amount. The probable value of pre-empted land can be assessed on holding a preliminary inquiry but the said assessm ent is subject to final decision of suit.
7. The respondent pre-emptor if is interested to purchase the preempted land and thinks that this land will be useful for him and he is entitled to the said land in exclusion of the purchaser, he should accept the order of learned trial Court for the simple reason that this amount will remain available with the learned trial Court and will be subject to decree which will be ultimately passed in the suit if proved. In case he succeeds to prove that the sale price was Rs,95,000 the excess amount deposited will be refundable to him and in case the learned trial Court come, to the conclusion that the actual price was Rs,8,00,000, the said amount will be adjusted towards decretal amount and without paying decreed amount, the plaintiff will not be entitled to get benefit of decree.
8. In view of above, the order of learned Additional District Judge is not in accordance with law and is set aside consequently the order of learned Civil Court is restored.
9. There is no order as to costs.