1. NASIM HASAN SHAH, J. --By a registered sale deed dated 14-10-1965, wherein the price of the land is stated to be Rs. 50,000 the appellant purchased land measuring 289 kanals 13 marlas in village Daulatpur, Tehsil Chiniot, District Jhang. The amount of the sale price mentioned in the sale deed is stated to have been paid to the vendor before the Sub-Registrar by Muhammad Rafiq D. W. 3 and an endorsement to this effect was, accordingly, made by the Sub-Registrar on the registered sale deed.
2. The respondent challenged the sale of the aforesaid land in favour of the appellant by filing a suit for possession through pre-emption in the Court of Civil Judge, Chiniot which was tried by the Administrator, Civil Judge, Jhang. On the pleadings of the parties, the trial Court, inter alia, framed the following issues :-
(1) Has the appellant superior right of pre-emption ? O. P. D.
(2) Was the land sold for Rs. 50,000 and the same was actually paid ? O. P. D.
(3) If not, what is the market value of the suit land ? O. P.
3. The parties led evidence before the trial Court. The appellant's evidence consisted of the scribe of the sale deed, the marginal witness to it as well as the person (Muhammad Rafique), who settled the bargain and paid the price of Rs. 30,000 on behalf of the appellant to Fateh Sher vendor before the Sub-Registrar.
4. The respondent produced Atta Muhammad Patwari, P. W: 1, who produced price index prepared by him of the entire village according to which the price worked out was Rs. 1,049,75 per acre. He also produced Muhammad Mumtaz, Advocate, P. W. 2, who stated that Rs. 50,030 were paid to the vendor before the Sub-Registrar but later on Rs. 17,000 were returned. The respondent appeared as P. W. 3 and stated that be had a right of pre-emption in the village. He did not depose anything with regard to the price paid by the appellant to the vendor.
5. The learned trial Court decided Issues Nos. 1-2 against the appellant and while determining Issue No. 3 assessed the market value of the suit land at the rate of Rs. 900 per acre and passed a decree for possession on payment of Rs. 32,600.
6. The appellant filed an appeal in the High Court of West Pakistan, Lahore (R. F. A. No. 32/68) where he did not challenge the finding that the respondent had a superior right to pre-emption but only disputed the fixation of the value of the suit land. The appeal came up for hearing before a Division Bench of the learned High Court and was partly allowed; in that the market value of the land was fixed according to the price index Exh. P. 2 prepared by the patwari P.W.1. Thus, the sale price was fixed at Rs. 38,016.56 instead of Rs 30,000.The appellant still feeling aggrieved by the fixation of the value of the suit land is filed this appeal before this Court.
7. Sh. Maqbool Ahmad, learned counsel for the appellant has submitted that the learned Judge in the High Courts have failed to act upon the presumption which attaches to the endorsement made by the Sub-Registrar with regard to the payment of the price on the sale deed which has resulted in miscarriage of justice. He further submits that the respondent---s own witness Mr. Muhammad Mumtaz, Advocate P. W. 2 admitted that Rs.50,000 were paid on behalf of the appellant before the Sub-Registrar, as such, there was no dispute that the appellant did pay .This amount before the Sub---Registrar. It is submitted that in the absence of any evidence to the con--trary, the learned Judges in the High Court were not justified in holding that the amount of Rs. 50,000 was not paid to the vendor.
8. The learned Judges in the High Court have disbelieved the fact that the appellant had paid Rs.
9. 50,000 as price of the land on the ground that "the pre-emptors bad a general tendency to resort to contrivances for defeating the pre-emptors and that the land in suit had no subjective or special value for the vendee and, therefore, the market value is different from the ostensible value.
10. Before us, the learned counsel for the respondent has amplified the observations of the learned Judges that the higher price was mentioned in the sale deed in order to scare away the pre- emptors. The purchaser was a rich industrialist and there was a great disparity between the sale price and the market value.
11. It is evident that the considerations weighing with the Courts below for not accepting the price mentioned in the sale deed which is backed by the endorsement of the Sub-Registrar on the sale deed is based on conjectures and generalities. There is no marked disparity between the market value as shown in the price index prepared by the Patwari and the sale price actually paid and if the vendor was a rich industrialist he could easily pay the price mentioned in the sale deed. Even the price index Exh. P. 2 prepared by the Patwari included sale of all kinds of land i.e. Sam, Thur, Barani and Banjar and was, therefore, not a very reliable indicator of the correct price. Moreover, this Court in Malik Hussain and others v. Lala Ram Chand and others (PLD 1970 SC 299) observed, keeping in view the provisions of section 25 of the Pre-emption Act that "if the Courts finds that the price mentioned in the deed of sale was, in fact, paid, then, the pre-emptor, in order to pre-empt, shall be required to pay that price 11 and it shall not be necessary for the Court to determine the market value of the property and fix the price for the purpose of pre-emption". In the instant case, no substantial reason 'Alas been given why the price mentioned in the sale deed should not have been accepted and reasons given for departing from mentioned therein, as observed already, consists of conjectures and generalities. In view of the endorsement by the Sub-Registrar that the amount of Rs. 50,000 mentioned in the sale deed was paid before him a presumption arose that the price mentioned in the sale deed was actually paid and on the evidence advanced by the respondent this presumption was not rebutted.
12. This appeal must, therefore, succeed and is allowed. The decree for possession is maintained, subject to the payment of Rs. 50,000 by the pre--emptor to the appellant. The appellant shall also have his costs.