' MUHAMMAD SHARIF, J.-The propriety and the legality of the judgment dated 10-3-1981 pronounced by Ch. Riaz Mahmud, the learned Civil. Judge 1st Class Bahawalpur, has been agitated in this appeal in which he passed a decree for possession by pre-emption of the land in dispute in favour of the respondents on payment of Rs, 2,80,000.
2. The facts giving rise to the instant appeal in substance are that the land in dispute measuring 306 kanals situate in village Aghapur Tehsil and District Bahawalpur belonged to one Ahmad Din son of Munshi Rahim Bakhsh who sold the same in favour of the appellants by means of a sale deed registered on 20-6-1977 for an ostensible consideration of Rs, 3,31,575. Raja Mukhtar Ali Advocate and his brother Raja Fayyaz Ali the owners in the estate sought to pre-empt the land in dispute on the basis of their preferential right of pre-emption and on the allegation that a sum of Rs, 57,750 was actually paid to the vendor and the market price of the land in dispute did not exceed this sum.
3. The vendees denied the superior right of pre-emption of both the pre-emptors and reiterated that they had in fact paid R. 3,31,575 as sale price of the land in dispute. They claimed to be compensated for improvement effected on the land in dispute and assailed the valuation of this suit for the purposes of court-fee and jurisdiction. They took the plea of estoppel and limitation and have added that the plaint was not signed by respondent No, 2 and one-fifth of the pre-emption money was not deposited in accordance with law. The learned trial Court formulated the following issues :-
(1) Whether the plaintiff's suit is time barred?
(2) Whether the suit has been improperly valued for the purposes of court-fee and jurisdiction, if so, what is the correct valuation for the both purposes? 0. P. D.
(3) Whether the plaint is not signed by the plaintiff No, 2? If so, its effect? 0. P. D.
(4) Whether the plaintiffs have deposited the Zar-i-Panjam according to law? If so, its effect? 0. P. P.
(5) Whether the plaintiffs are estopped by their words and conduct to bring the suit? O. P. D.
(6) Whether the vendee-defendant has made any improvements on the suit land? If so, to what extent? 0. P. D.
(7) Whether the plaintiffs have superior right of pre-emption against the vendee-defendants?
(8)Whether the ostensible sale price of Rs, 3,31,575 was fixed in good faith or actually paid at the time of its sale? If not, what was the market value of the suit land when sold ? 0. P. P. .f.9) Relief.
' Issues Nos. 1 to 5 were decided against the appellants whereas a sum of Rs, 10,000 was allowed by way of improvements under issue No,
6. The sale price and the market value of the land in dispute was determined as Rs, 2,70,009 and the respondents were directed to deposit a sum of Rs, 2,80,000 upto 30-6-1981 failing which their suit was ordered to be dismissed with costs.
4. The findings of the learned trial Court on issues Nos. 2, 4, 5, 7 & 8 have been mooted before us. In respect of issue No, 2 it has been contended that the statement of net profits was improperly prepared in accordance with the whim and caprice of the respondents and excessive deductions had been made in computing the net profits of the land in dispute. Secondly it was urged that the well slender measuring two marlas comprised in a separate Khata No, 36 should have been valued separately according to its market value. Lastly it was represented that the vendees had effected improvements on the land in dispute and the value of such improvements should have been included in assessing the valuation of this suit for the purposes of court-fee and jurisdiction.
5. The statement of net profits in Exh. P. 4 which is illustrative of the fact that during the year preceding the presentation of the plaint, the net profits of Rs, 1,469.75 had arisen and a court-fee of Rs, 1,650 was to be deposited at fifteen times of the net profits amounting to Rs, 21,900. Along-with this Goshwara, the copy of jhar pedawar and the rate of the yield of each crop has been attached.
In accordance with section 7 (v) of the Court Fees Act where the net profits had arisen from the land during the year next before the date of the presentation of the plaint, then the Court Fee is to be A deposited 15 times of the net profits. Net assets have been defined in section 4 (xvi) of the W.
P. Land Revenue Act, 1967 which reads as under :- "Net assets of an eastate or group of estates mewls the estimated average annual surplus produce of such estate or group of estates remaining after deduction of the ordinary expenses of cultivation as ascertained or estimated ; ' Explanation : Ordinary expenses of cultivation include payments, if any, which the land owner customarily bears, whether in kind or in cash, and whether in whole or in part in respect of-.
(a) water rates,
(b) maintenance of means of irrigation,
(c) maintenance of embankments,
(d) supply of seed,
(e) supply of manure, f) improved implements of husbandry,
(g) concessions with regard to fodder,
(h) special abatements made for fallow or bad harvests, (1) cost of collection of rent,
(j) allowance for shortage in collection of rent,
(k) interest charges payable in respect of advances made in cash, free of interest, to tenants for the purpose of cultivation,
(I) wages or customary dues paid to village auxiliaries whose products or labour are utilized for the purposes of cultivation and harvesting ; ' and the share that would be retainable by a tenant if the land were let to a tenant paying rent, whether in cash or in kind, at the normal rate actually prevalent in the estate or group of estates."
6. It may be seen that the plaintiff has not given an arbitrary valuation of the yield of the crops grown during the year preceding the presentation of the plaint but has based the net profits on the relevant documents appended to it. The statement of net profits was not prepared by the Girdawar Kanungo yet there is no evidence in rebuttal to show that more net profits had arisen from the property in dispute during the preceding year. This document was not objected to when it was presented and exhibited. It evinces the annual net profits of Rs, 5,876.25 and the deductions have been made regarding the seed and the manure only. The deductions have been made according to clauses D & E of the definition of net assets and the other permissible deductions have not been made. So deductions made in computing the net profits cannot be termed as excessive. The appellants have not produced any counter-statement of net profits in order to show that profits have been erroneously calculated by the plaintiffs-respondents in this case.
7. It has been contended that in the plaint well slender measuring 2 marlas has been mentioned and the valuation of this piece of land should have been assessed according to the market value of the suit land. A well slender is included in the definition of land and there was no necessity of its separate valuation. It may, however, be noted that according to the statements of the plaintiffs- respondents daura chah does not exist in the property in dispute. No effective suggestion was put to the respondents in respect of the issue of daura chah. It was, however, suggested to Raja Mukhtar Ali P. W. 1 that daura chah in Chahneemwala existed in this village. Raja Mukhtar Ali refuted this suggestion and made an offer that a local commissioner may be sent to the spot at his expense so that he could report about the existence of well slender at the site. This offer was not accepted by the appellants. The presumption is that no well slender exists on the spot and there was no necessity of its separate valuation.
7-A. With reference to Muhammad Anwar and others v. Dial Chand and others (1), it has been contended that court-fee should be paid prima facie not only on the value of site stated in sale- deed but also on costs of improvements. In this precedent the sale of a house was sought to be pre-empted and it was adjudicated that the improvements made on the property before suit should have been taken into consideration for valuing the suit for the purpose of court-fee. The principle enunciated in this authority cannot safely be extended to the instant appeal because the definition of land includes the sites of buildings and other structures thereon. A feeble attempt was, however, made by examining Bashir Ahmad D. W. 6 to show that by means of receipt Exh. D. 7, the thatched huts and rooms were constructed at the cost of Rs, 9,500. When subjected to the cross- examination, Bashir Ahmad D. W. 6 clarified that the appellants demanded receipt from him and he furnished the same and he had recovered this amount by instalments after finishing his job. Exh.
D. 7 is dated 25-7-1977. The signatures of Bashir Ahmad are not decipherable on this document.
The words 9,500 have been written and there is an overwriting on the word An overwriting appears on the figure '5' where 9500 has been written. This document has been stained with an oily hand so that it may put on an old look. Exh. D. 7 in this manner, is of doubtful authenticity and no reliance can be placed on this document. Atta Muhammad D. W. 5 has witnessed the receipt Exh, D. 7, but he does not state anything about it. This being so, it has not been proved that any improvement was made in the land in dispute before the institution of this suit. The plaintiffs-respondents had paid the court-fee on 20.6-1978 when the suit was instituted. The findings of the learned trial Court on this issue are, therefore, affirmed.
8. The appellants have agitated that the respondents were ordered to deposit one-fifth of the pre- emption money, but they wangled to get attested a security bond without moving any application or having the order of the learned trial Court. The order sheet maintained by the learned trial Court is indicative of the fact that on 20-6-1978, the learned trial Court ordered that summons be issued to the defendants for 31-7-1978 and the plaintiffs be directed to deposit Rs, 66,315 one-fifth of the pre-emption money before 31-7-1978. On 31-7-1978, it has been recorded that the security bond has been filed and the defendants be served again.
9. It is pertinent to note that the original application for furnishing the security bond with the order of the learned trial Court was found missing from the file and the file had to be reconstructed. The learned counsel for the appellants has contended that there was no application and consequently there was no order of the Court to furnish the security bond and an erroneous note was given by the learned trial Court that the security bond had been filed. We do not subscribe to this view because during the enquiry regarding the reconstruction of the file, Mr. M. M. A. Pirzada Advocate, the learned counsel for the appellants had stated that his clients had told him that the Court had ordered the furnishing of the security bond and then he took the plea embodied in issue No,
4. In the said enquiry Mr. Fayyaz Ahmad Bhutta Civil Judge 1st Class Lodhran who had ordered the furnishing of the security bond when he was posted at Bahawalpur has stated that an application was submitted to him and he had dictated the order to his Steno that personal bond may be furnished. Under section 114 of the Evidence Act all the official acts are presumed to be done in a proper manner. In this case {{FOOT NOTE}}
(1) AIR 1937 Lah. 239 {{FOOT NOTE}} ' there is enough evidence on the enquiry file to show that the security bond was furnished by the order of the Court by presenting an application.
10. It was further stated on behalf of the appellants that in accordance with Chapter I-E(2) of the High Court Rules & Orders, Volume V, the application should have been accompanied by an affidavit. This chapte deals with the making and filing of affidavits in the High Court and is no applicable to the filing of affidavits in the lower Court and resultantly the affidavit was not necessarily to be filed with the application.
11. It was further represented that the order regarding the filing of the security bond constitued a variation in the original order and it could not be done without notice to the appellants and it should have been for the probable value of the land in dispute according to section 22 (1) of the Punjab Pre-emption Act, 1913. In Raja Khan v. Muhammad Khan and another (1), it was held that the acceptance of the security bond does not imply that order for cash deposit was varied. Similarly Shabbir Hussain v. Muhammad Shafique (2) lays down that the court fixed one-fifth of the probable value of the property and directed security to be furnished in the shape of a personal bond and the said order was held perfectly correct. In view of the aforementioned precedents, the objections of the appellants fail. The respondents have rightly given a security bond in accordance with the direction of the learned Civil Judge.
12. The findings on issue No, 5 were half-heartedly agitated by Sh. Inayat Ali Advocate, the learned counsel for the appellants. He was under the impression that one of the pre-emptors had assured the vendees that they would not bring any pre-emption suit but the matter is otherwise. Atta Muhammad D. W. 5 had stated that Iftikhar Ali had assured the vendees to purchase the land in dispute. Iftikhar All is the brother of the pre-emptors who had not joined the pre-emptors in this case. So the question of estoppel on the part of pre-emptors does not arise.
13. The appellants have assailed the document Exh. P. 1 which is a copy of Parcha Zamindaran Ishtimal Arazi Village Aghapur Tehsil & District Bahawalpur and have contended that this document was not proved in accordance with the provision of section 76 of the Evidence Act.
Village Aghapur was under consolidation operations. The Patwari Halqa furnished the copy of this document which was exhibited without objection. The appellants have cited Khizar Muhammad and others v. Ghulam Muhammad and others (3) in order to support their contention. Conversely P L D 1968 SC 140 has been referred to, which lays down that objection as to formal proof of document must be taken at the earliest point of time and it cannot be taken subsequently and certainly not in appeal. In this manner, no objection can be heard at this stage on the document Exh. P. 1 which is reflective of the fact that both Mukhtar All and Faiz Ali pre-emptors are owners in Village Aghapur whereas the appellant are strangers in this village.
14. It is significant to note that both the pre-emptors who appeared as P. W. 1 and P. W. 2 respectively stated that they were the owners of the land in this village and they were not effectively cross-examined on this point rather the appellants' own withesses Haji Muhammad.
Bakhsh D. W. 3, Ghulam Sarwar D. W. 4 and Abdul Ghafoor D. W. 7, who is one of the appellants, have starkly admitted that the plaintiffs-respondents owned land in {{FOOT NOTE}}
(1) AIR 1930 Lah. 567 (2) PLD 1969 Lah. 393
(3) PLD 1962 Lah. 492 {{FOOT NOTE}} ' village Aghapur. It has been proved beyond any manner of doubt that the plaintiffs-respondents being owners in village Aghapur could boast of having a preferential right of pre-emption as against appellants-vendees.
15. The appellants have stated that they paid a sale price of Rs, 3,31,575. According to them, they paid a sum of Rs, 80,000 when an agreement to sell was executed and they paid Rs, 1,84,000 before the Registrar when the sale-deed was got registered. They have explained that they made a payment of Rs, 52,000, the price of the house of Ali Muhammad's wife to the wife of the vendor which was accounted towards the sale price of the land in dispute. The remaining sum was paid by means of instalments. Hidayatullah D. W. 1 has simply stated that he had scribed the agreement deed Exh. D. 1 and the receipt Exh. D.
2. He does not state that any money was paid in his presence. Muhammad Abbas, D. W. 3 identified the signatures of his father Ahmad Din, the vendor, who is dead. He is not a competent witness to prove the payment of Rs, 80,000 nor has be made such statement. He has deposed that the house of Mst. Hashmat Bibi, the wife of Ali Muhammad was sold in favour of his mother for Rs, 52,000. Ata Muhammad D. W. 5 has testified that Rs, 80,000 were paid in his presence. Atta Muhammad carries on his vocation of trade and resides in Riaz Colony Bahawalpur. He holds land in Fort Abbas. He does not cogently justify his presence when the bargain of the land in dispute was negotiated or the payment of Rs, 80,000 was made. He is a chance witness and chances mostly lead to fiction.
Abdul Ghafoor has stated that Rs, 80,000 were paid to the vendor at the first instance. The receipt Exh. D. 2 regarding the payment of Rs, 80,000 has been produced, but its marginal witnesses have not been produced to endorse its contents. In the deed of agreement Exh. D. 1, it has been recorded that the remaining sale price shall be paid before the Sub-Registrar, but strangely enough the vendees chose to pay the balance by different instalments. Rs, 10,250 are stated to have been received by Munshi Ahmad Din from Ali Ahmad Chaudhry one of the vendees by means of the receipt Exh. D.
3. Haji Muhammad Bakhsh D. W. 3 had stated that a sum of Rs, 10,000 was paid by the vendees for the ejectment of the tenants by way of compensation to them regarding their standing crops. The vendees had taken possession of this property and had harvested the said crops. Resultantly this sum cannot safely be counted towards the sale price of the land in dispute.
16. Reviewing the entire vidence produced by the appellants, they have not cogently proved the payment of sum of Rs, 80,000. Even the sale-deed executed by the wife of Ali Ahmad in favour of the vendor's wife does not embody a recital that this transfer was made on account of the part payment of the sale price of the disputed land. The payment of Rs, 1,84,000 before the Registrar has, however, been proved. So the sale price actually proved to have been paid by the appellants is much less than the market price determined by the learned trial Court.
17. The disputed sale took place on 4-5-1977, but the sale deed was registered on 20-6-1977. The respondents had tendered in evidence the sale deeds of three transactions, the copies of which are Exh. P. 9 to Exh. P.
11. Exh. P. 9 indicates that Mst. Amir Jan, the mother of the pre-emptors had sold 48 kanals and 8 marlas of land in favour of her sons Iftikhar Ali and Fayyaz Ali in consideration for a sum of Rs, 20,000 on 24-4-1976. This is a transaction between mother and sons which does not truly represent the sale price of the land embodied in the sale-deed. Exh. P. 10 and Exh. P. 11 are different sale- deeds by virtue of which 16 kanals of land in each transaction was sold for Rs, 4,000 on 23-12-1969 and 21-1-1969 respectively. The sale price of lands in the year 1969 does not merit any consideration in assessing the market value of the land in dispute. The appellants have, however, placed on the record a copy of the sale-deed Exh. D. 2 which shows that 199 kanals and 19 marks of land was sold by Mst. Rashida Khanam and Mst. Manzoor Khanam in favour of Riazuddin for a sum of Rs, 4,66,112 on 4-3-1978. The learned counsel for the appellants vehemently urged that this sale deed should be taken into account in assessing the market price of the land in dispute. This transaction was negotiated about a year after the sale in dispute and the selected transactions do not provide a safe yardstick to determine the market value of the land in dispute. Even the copy of the quinquennial average has not been produced.
18. No reliable evidence has been adduced to show the market price of the land in dispute. When there is no adequate evidence of the market value E of the land in dispute then the resort is had to the sale price actually proved to have been paid by the vendees. In this manner, higher price was determined by the trial court than actually proved to have been paid.
19. The learned trial Court has determined a sale price of Rs, 2,70,000 and has allowed Rs, 10,000 by way of improvements. Since no cross objections were filed by the plaintiffs-respondents in this appeal, so it shall be presumed that they have admitted the sale price and the value of improvements determined by the learned trial court. In the light of the above observations, the appeal fails and stands dismissed with costs.