1. ' This is a pre-emption case out of which this second appeal has arisen. The counsel for the parties were heard and the perusal of the record was also made. Purchase money is now the only matter in dispute between the parties for consideration of this Court and nothing else. The issues in respect of the matter in hand were struck by the trial Court to the following effect namely ; "(2) Whether price of the land was fixed as Rs, 10,000 in good faith and this much amount was also paid to the vendor ?
(3) Whether the bargain of the land in suit was struck for Rs, 4,000 and this much was the amount paid ?
2. ' The evidence on Issue No,. 3 was led contrary to the stand taken in the plaint and at the same time it was all hearsay as Ali Akbar, the vendor from whom the information was allegedly obtained by the witnesses, was not produced as a witness to substantiate the matter in issue and so it was rightly determined by the Courts below.
3. ' The evidence on this issue could be treated as evidence in rebuttal to Issue No,.
2. But it does not mean that, if no cogent evidence in rebuttal could be led by the plaintiff, the Issue No,. 2 could as such be taken as proved. This was the function of both the Courts below to see whether Issue No,. 2 stands proved and to what extent ? But they have failed to appreciate the evidence produced on this issue.
4. A sum which was paid before the Sub-Registrar that was rightly taken into consideration as it was deposed to by the witnesses concerned, but a 4 sum of Rs, 2,000 which was allegedly paid out of office at the time the bargain was struck, was not proved to have been paid. A receipt for payment of this sum was said to have been reduced to writing. Read Karam Dad, vendee's statement in this behalf. But no such receipt was adduced in evidence. And thus the documentary evidence, if in existence, was not adduced in evidence, Muhammad Yasin, the witness of the vendees who has claimed his presence at the time of, bargain, has refused to have admitted any written receipt in respect of the payment of Rs, 2,000. So his statement in view of the statement of the defendant- vendee carries no worth at all. Any oral evidence in absence of a written receipt as claimed by the defendant-vendee without any explanation cogently given with regard to its non-production, is no evidence in law. And so the Courts below were wrong to rely upon the evidence which has no legal value.
5. ' That being so, the appeal is accepted as indicated above and the preemptors are directed to deposit a sum of Rs, 8,000 plus Rs, 353 as costs of sale-deed, amounting to Rs, 8,353 in the trial Court within a fortnight, that is to say, on or before 9-5-1983 and in case of default, the suit shall stand dismissed with costs.