ANWAAR HUSSAIN, J.---The concurrent findings of law and fact have been assailed through the instant Regular Second Appeal by the appellant, who was purchaser of the suit property measuring 10 Marlas, out of Khewat No.55, Khatooni No.165, situated in Ganj Shakar Colony, Sahiwal (hereinafter referred as "the plot") for a sale consideration of Rs . 330, 000/-, vide sale deed No .1482/1 dated 26.05.2004, in respect of which the respondent instituted a suit for pre-emption on the ground that the plot is adjacent to his property and, therefore, he had preferential right to the same as compared to the appellant. The respondent asserted in the plaint to have fulfilled the requirements of necessary Talabs contemplated under the Punjab Pre-emption Act, 1991 (hereinafter referred as "the Act"). It has also been averred that in order to defeat respondent's right of pre-emption, the sale consideration in the sale deed has been inflated to Rs.330,000/- instead of the actual sale consideration paid by the appellant to the vendor which is Rs.265,000/-.
The suit was contested and the superior right of the respondent under the Act was initially denied with the assertion that the appellant had paid Rs.480,000/- as sale price but the sale deed was registered as per the scheduled value. During the pendency of the suit, a compromise took place between the parties and in presence of the appellant, his learned counsel conducting the trial, got recorded a statement, on 29.11.2004, before the learned Trial Court to the effect that the possession of the suit property has been given to the respondent and the price would be settled with mutual consent of the parties, however, the price between the parties could not be settled and an application under Order XV Rule 1 read with Order XXIII Rule 3 and Section 151 of Code of Civil Procedure, 1908 (hereinafter referred as "C.P.C.") was filed by the respondent, which was dismissed. The said order was assailed in revision and the revisional court, vide order dated 27.11.2008, directed the learned Trial Court to frame the issues and determine the price. The order was then challenged by the appellant before this Court through constitutional petition bearing W.P No.1548/2009, however, the same was dismissed vide judgment dated 25,03.2009, which was never further assailed. Thereafter, the learned Trial Court framed the issues regarding the settlement of the price. The appellant filed application for modification of the issues that was dismissed on 07.07.2009 and the said order was upheld in revision, vide order dated 07.10.2009, where-after another application for striking out the issues was filed with the assertion that the sale price was to be determined with the consent of parties and direction was sought to settle the sale price by mutual consent, however, the said application was also dismissed by the learned Trial Court, vide order dated 17.12.2009. The said orders were never challenged. Thereafter both the parties adduced their evidence, which was recorded and the learned Trial Court fixed the sale price as Rs.330,000/- along with Rs.20,400/- as incidental charges; vide judgment dated 14.07.2010, which was assailed by the appellant by preferring appeal that was dismissed vide judgment dated 26.11.2010, hence, the instant Regular Second Appeal has been preferred under Section 100, C.P.C.
2. Learned counsel for the appellant submits that no doubt compromise had taken place between the parties but the same was to be acted in totality and when the parties had failed to settle the price with mutual consent, the compromise was no more valid and, hence, the pre-emption suit should have been heard on its merits and the respondent was obligated to establish that he has fulfilled requirements of talabs under the Act and also establish his superior right of pre-emption.
Adds that in terms of Order XII, Rule 6, C.P.C. read with Order XXIII, Rule 3, C.P.C., admission on part of the appellant was conditional upon settlement of the sale price, with the mutual consent and since the parties could not reach the consensus regarding sale price, the said compromise lost its validity. In support of his contentions, learned counsel for the appellant places reliance on "Messrs Kuwait National Real Estate Company (Pvt.) Ltd and others v. Messrs Educational Excellence Ltd. and another" (2020 SCMR 171), "Messrs Shandab Developers v. Abdullah" (2009 MLD 397), "Mst. Willayat v. Khali: Khan" (PLD 1979 SC 821) and "City Government v. Faqir Muhammad" (2U, CLC 645).
3. Conversely, learned counsel for the respondent submits that the admission was unequivocal and the possession of the plot was handed over to the respondent and this part of the compromise has attained finality after dismissal of W.P No.1548/2009 titled "Ch. Muhammad Salim v. Additional District Judge, Sahiwal etc." which is also cited as "Ch. Muhammad Saleem v.
Additional District Judge, Sahiwal and 2. others" (2009 YLR 1621). Places reliance on "Qasim Ali v.
Muhammad Saeed" (PLD 1989 Lahore 230) to submit that the appellant could not wriggle out of his own admission about the sale price recorded in the sale deed.
4. Arguments heard. Record perused.
5. In the light of arguments of learned Counsel for the parties, following legal questions have been formulated, in terms of Section 100, C.P.C., for adjudication by this Court:
(i) Whether the right of pre-emption and the determination of sale price stand at two different pedestals severable from each other or both are so inextricably intertwined that failure to reach a settlement on sale price by a vendee and pre-emptor ipso facto obliterates the compromise to the extent of right of pre-emption?
(ii) Whether admission of right of pre-emption, once made, could be retracted if the vendee and pre-emptor fail to reach mutually acceptable price?
(iii) What is the true import and scope of Section 27 of the Act?
6. The first two questions are interwoven. In order to answer the same, it is imperative to note that on a larger canvass, a suit for possession through pre-emption involves two major constituents in a linear manner; firstly, the determination as to whether the right of pre-emption vests in a pre- emptor or not; and, secondly, the determination of actual sale consideration, if and only, in such cases and situations where there is a dispute as to the actual sale consideration. A scan-through the provisions of the Act amply reveals that firstly it is to be determined as to whether the right of pre-emption claimed by a plaintiff actually vests in him or not as per the provisions of the Act, and case law developed viz., the right of pre-emption. There is no cavil to the legal position that the right of pre-emption is not a right of repurchase partaking of a new contract of sale rather the same is in the nature of substitution where the pre-emptor is made to step into the shoes of the vendee. In case reported as "Inayatullah v. Gobind Dayal" [(1885) ILR 7 All 775], it has been held as under: "25. ...because the right of pre-emption is not a right of re-purchase either from the vendor or from the vendee, involving any new contract of sale; but it is simply a right of substitution, entitling the pre-emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It is, in effect, as if in a sale deed the vendee's name were rubbed out and the pre-emptor's name inserted in its place."
(Emphasis supplied)
Thus, a pre-emptor has to establish his right of pre-emption in terms of the law in vogue as to the basis on which he claims his right of pre-emption and the talabs/demands made by him. It is only when a pre-emptor is able to establish his right of pre-emption that he is entitled to be substituted into the steps of the vendee. Thus, if the right of pre-emption is not established, the pre-emptor cannot be substituted with the vendee. On the other hand, if the right of pre-emption is established and/or admitted to be vested in the plaintiff/pre-emptor, the next step is substitution of the pre- emptor into the shoes of the vendee which is, at least, concomitant if not consequential to the right of pre-emption.
7. In the instant case, after the suit for pre-emption was instituted, the parties effected a compromise, which has been recorded, on 29.11.2004, to the following effect: It is imperative to note that above-referred compromise needs to be examined and interpreted in peculiar facts and circumstances of the case. It has two parts. First part relates to acknowledgment on part of the appellant whereby it has been unequivocally undertaken that the plot has been given to the respondent and the second part relates to ascertaining of the sale price. The admission/ compromise to the extent of vesting of right of pre-emption in the respondent/ pre-emptor is conclusive. There is no ambiguity at all as it is admitted feature of the case that Mr. Sadaqat Ali Chaudhary Advocate, learned counsel for the appellant on instructions and in the presence of the appellant got recorded a categorical statement that is quoted hereinabove and perusal of the same reveals that the appellant acknowledged that the plot had been given to the respondent and only the price was left to be ascertained with the mutual consent of the parties. It is also clear from the statement of learned counsel for the appellant that the plot was given to the respondent, without any condition as there is nothing in the statement to the effect that in case of non-settlement of price with the mutual consent of the parties, the act of giving away the plot would stand nullified and the possession will revert to the appellant and the suit shall be decided on merits. Moreover, this aspect has been thrashed out, in first round of litigation, which ended up in reported judgment dated 25.03.2009 (Ch. Muhammad Salim supra), operative part whereof reads as under: "6. ...Apart from the objection as to the maintainability of the present petition is concerned, the case was looked into on merits as well. The perusal of record reveals that the petitioner in the presence of his counsel has very consciously made the statement as to the compromise entered between hint and the respondent and in this regard the reference can be made to the orders dated 30.10.2004, 27.11.2004 and 29.11.2004. That on 29.11.2004 in the presence of his counsel he made a very categorical statement before the Court that possession of the plot has been handed over to the respondent and only the price of the plot is to be determined. The statement is signed by the petitioner as well as his counsel, thus, there is nothing wrong with the order dated 27.11.2008 of the learned Addl: District Judge, Sahiwal".
(Emphasis supplied)
It is quite evident from the above findings of this Court in earlier round of litigation that the admission of the appellant regarding handing over of possession of the plot to the respondent was maintained by this Court and the said fact cannot be assailed again in a new round of litigation.
The main relief/right claimed by the respondent is the right of pre-emption that was admitted and/or compromised by the appellant leaving behind the issue of determination of price, which forms a subsequent limb of the suit of pre-emption. In-fact, it is the second constituent of a pre- emption suit pertaining to the determination of actual sale consideration where there is a dispute as to the actual sale consideration to complete the substitution as held in case of `Inayatullah' supra. It would be more apt to state that the said second constituent actually sprouts out of the main right of pre-emption once it is established. In other words, the right of pre-emption decides whether the pre-emptor should be substituted in place of the vendee with respect to the pre-empted property and the second constituent relates to determination of the conditions on which the vendee stands so that the pre-emptor is substituted in and subjected to the same conditions. Thus, it does not envisage a re-negotiation of the sale price but only the determination and ascertainment of the same as the parties were in dispute as regards the same. inasmuch as the respondent asserted that the actual price was Rs.265,000/- and only to defeat the claim of the respondent as pre-emptor, the price has been recorded as Rs.330,000/-, in the sale deed, whereas the appellant as the vendee of the plot stated in his written statement that in fact the property was purchased by him at a price of Rs.480,000/. Therefore, the contention of learned counsel for the appellant that the failure to reach a settlement viz., the sale price, takes the proceedings back to square one and obliterates the compromise regarding right of pre-emption does not hold water as both the establishment of right of pre-emption and determination of price are two independent aspects having their respective place in the adjudication process and when the parties failed to ascertain/ determine with mutual consent as to which out of the three amounts is the actual sale price on the basis of which the right of the appellant is to be substituted with the right of the respondent as pre-emptor, the learned Trial Court invoked Section 27 of the Act, which takes this Court to examine the import of Section 27 of the Act that is the third legal question involved in the matter.
8. Section 27 of the Act reads as under: "27. Determination of price. (1) Where the parties do not agree to the price at which the pre- emptor shall exercise his right of pre-emption, the Court shall determine whether the price at which the sale purports to have taken place was fixed in good faith or paid, and if it finds that the price was not so fixed or paid, it shall fix the market value of the property as the price to be paid by the pre-emptor.
(2) If the Court finds that the price was fixed in good faith or paid, it shall fix such price to be paid by the pre-emptor.
Perusal of Section 27 reveals that the legislature has specifically empowered the learned Trial Court to determine the sale price where the parties are at variance as to the actual sale price paid by the vendee in a sale contract that triggered pre-emption. This brings to the fore the legislative intent that subsequent to the determination of the existence of the right of pre-emption, the sale price may also be determined by the Court. Thus, where the right of pre-emption has not only been admitted but even the possession of the plot in pursuance of admission and compromise was handed over by the appellant to the respondent, the learned Trial Court rightly determined the price which is the only dispute remaining between the parties after settlement of the primary issue of right of pre-emption. The Act provides the mechanism for the determination of sale price of the pre-emptible property subjected to right of pre-emption. The learned Trial Court has been empowered to determine the price on the yardstick of market value but such exercise is to be taken only in cases where the parties are at dispute with regards to A the price. This is evident from the plain reading of Section 27 of the Act. Where there is no dispute between the parties with respect to the price of the property, the determination of the dispute as to existence or otherwise of the right of pre-emption would conclude the adjudication. Hence, the law envisages that once the right to pre-emption is established, the sale price may be determined in case of dispute between the parties. In the instant case, as examined hereinabove, the second part of the statement has a special context inasmuch as in a suit for pre-emption generally there is always a dispute as to the sale price on which the actual transaction has taken place. In the instant case, it was the assertion of the respondent, as pre-emptor, that the actual price was Rs.265,000/- and only to defeat the claim of the respondent as pre-emptor the price has been recorded as Rs.330,000/-, in the sale deed, whereas the appellant as the vendee of the plot stated in his written statement that in fact the property was sold at a price of Rs.480,000/- and only D.0 rate was used for the registration purposes. Therefore, once it was admitted that the plot had been handed over to the respondent, it was only the determination of the price which was required to be done. In ordinary cases of pre- emption where there is a disagreement over the price in a suit for pre-emption, the Courts frame specific issues in terms of Section 27 of the Act and decide the matter whereas in the instant case, right of pre-emption of the respondent is well acknowledged and has attained finality after dismissal of W.P No. 1548/2009 and when the matter was referred to the learned Trial Court for determination of price, it was obligatory on part of the appellant to establish that it was Rs.480,000/- that was the price settled and paid and not Rs.330,000/-. It is also pertinent to note that the issues framed by the learned Trial Court in relation to determination of price were also challenged by the appellant but the same were treated to be correct up-to the level of learned Revisional Court below and said finding was never assailed. Moreover, application filed by the appellant for striking out the issues was also dismissed by the learned Trial Court and the said order was also not challenged and, hence, attained finality. The appellant accepted the said orders and adduced his evidance. Perusal of evidentiary resume of the case after framing of issues on the subject reveals that the appellant produced as many as 03 DWs while himself appearing as DW-3.
The appellant produced Muhammad Aslam DW-1, Javed Bashir DW-2 and made his own statement as DW-3 but none of the witnesses uttered a single word that Rs.480;000/- was fixed and paid as sale price as alleged by the appellant in para 3 of his written statement. All the DWs stated that the present market rate is Rs.500,000/- per marla and this fact is also held to be non- beneficial for the appellant because the sale price is to be determined according to the market value at the time of sale of the plot which is the pre-emptible property. The appellant himself admitted in his statement as DW-3 that a sum of Rs.330,000/- was written in the sale deed. The learned Trial Court fixed the sale price as mentioned in the sale deed as Rs.330,000/- along with incidental charges to the tune of Rs.20,400/- for transfer of the plot. In his Examination-in-Chief, the appellant stated that he has been offered Rs.500,000/- per marla, which makes the sale price to be Rs.5,000,000/- as on 01.04.2010. Even if it is assumed that this offer is based on market value, certainly the said price was not one that the appellant paid when he purchased the plot on 26.05.2004 when the right of pre-emption accrued and which has been duly acknowledged by the appellant when his counsel recorded his statement in presence of the former. The appellant categorically acknowledged that the price recorded in the registered sale deed dated 26.05.2004 is Rs.330,000/-. During the cross-examination, he deposed as under: (Emphasis supplied)
The above quoted portion from the evidence of the appellant (DW-3) clearly indicates that the market rate as on the date of sale was clearly Rs.30,000/- per marla, which makes the value of the property to be Rs.330,000/- as recorded in the sale deed. The statement of DW-3 further gets strength when DW-2 appeared during cross-examination and stated as under: The appellant as well as other witnesses (DWs) could not substantiate that the market value of the property as on the date of sale was more than Rs.30,000/- per marla. The statement of DW-1 is as under: A careful perusal also reveals that the appellant as DW-3 stated that he has offer of Rs.500,000/- per marla from Muhammad Aslam, DW-1, however, DW-1 never stated the said fact in his Examination-in-Chief. In this background, when the respondent as pre-emptor instead of substantiating that the plot was purchased by the appellant for Rs.265,000/-, agreed to pay Rs.330,000/- there was no dispute left in the matter regarding determination of the price. Certainly, the appellant as defendant admitted respondent's superior right of pre-emption when the statement was recorded on 29.11.2004, therefore, he cannot back out from the same and ask for price in exaggeration of the price that he himself recorded in the sale deed. At the most he could have established that he paid an amount of Rs. 480,000/-, which he also failed to do. The appellant being vendee cannot wriggle out of his own admission and is only entitled to recover the same price recorded in the registered sale deed in, his favour, once he categorically acknowledged that he has handed over plot to the respondent on 29.11.2004. Reliance by learned counsel for the respondent on the case reported as `Qasim Ali' supra is well placed.
9. The matter may also be put in and examined from another angle. The assertion and/or denial of the right of pre- emption is the main and necessary dispute in a suit of pre-emption whereas the dispute as to sale price may or may not be present in a suit for pre-emption. The absence of the former would denude any suit form being a suit of pre-emption whereas the absence of latter would not have such affect. In the instant case, the conduct of the appellant clearly indicates that the appellant, if not admitted, waived his objection regarding maintainability of the suit of the pre- emption, instituted by the respondent, by recording his admission in respect of handing over the plot to the respondent. Moreover, the appellant also accepted the findings of this Court on the point of compromise/ admission in terms of handing over of the plot to the respondent and findings of Courts below on settlement of proper issues regarding the price etc., and the matter already settled and attained finality cannot be re-agitated in the second round of litigation. The present round of litigation is precisely pending as the appellant is adamant to demand a price in excess of the one he himself got recorded in the sale deed by virtue of which he had purchased the plot. Therefore, as regards the first and second legal questions, it is held that the right of pre- emption and the determination of sale price stand at two different pedestals severable from each other and failure to reach a settlement on sale price by a vendee and pre-emptor ipso facto does not obliterate the compromise to the extent of acknowledge-ment of right of pre-emption and admission of right of pre-emption, once made, could not be retracted if the vendee and pre- emptor fails to reach mutually acceptable price inasmuch as the price can be determined in terms of Section 27 of the Act. The cases referred and relied upon by learned counsel for the appellant have been examined and considered, however, keeping in view the peculiar facts and circumstances of this case, the same are not applicable inasmuch as the compromise in present case has attained finality.
10. Sequel to the above discussion, the instant Second Appeal is devoid of any merits and hence, dismissed.