' This is a civil revision petition under section 115, C. P. C. Through which Abdus. Samad vendee- defendant has challenged the judgment and decree, dated 25-11-1982 of Malik Muhammad Parvez Khan, District Judge, D. I. Khan ,whereby he accepted the appeal of the plaintiff-respondent and decreed the suit of the plaintiff on payment of Rs, 39,262 which was earlier decreed by Syed Ziafat Ali Shah, Civil Judge, D. I. Khan, vide his judgments and decree dated 12-11-1982 on payment of Rs, 62,820.
2. Facts leading to the instant civil revision are that ; Abdus Samad plaintiff brought a suit for possession through pre-emption of land Kbata No, 406, Kbatuni No, 1912, K Basra No, 2679 transferred area measuring 98 Kanals 6 Marlas situate in village Mohra to Kbata No, 84, Khatunis Nos. 268 to 273, Khasra numbers (18 plots) transferred area 113 Kanals 19 Marlas and Kbata No, 103, Khatuni No, 343, Khasra numbers (8 plots) transferred are 74 Kanals 8 Marlin situate in village Miali Tehsil and District D. I. Khan, total transferred area coming to 286 Kanals 13 Marlas on payment of Rs, 5,000.
3. The suit was hotly, resisted by the vendee-defendant and the pleadings of the parties led to the framing of the following issues by the learned trial Judge :-
(1) Whether the plaintiff has got cause of action ?
(2) Whether the suit is within time ?
(3) Whether the suit is bad for partial preemption ?
(4) Whether the plaintiff is estopped to bring the present suit ?
(5) Whether the suit is not correctly valued for the purposes of court-fee and jurisdiction ?
(6) Whether a sum of, Rs, 1,14,660 has been fixed in good faith or paid as sales consideration ?
(7) Whether the plaintiff has got a superior right of pre-emption ?
(8) Whether the plaintiff is entitled to the decree prayed for ?
(9) What is the market-value ?
(10) Relief 7 ' After recording the evidence of the parties as they wished to adduce the learned trial Judge decided issues Nos. 1, 2, 3 and 4 in favour of the plaintiff. On issue No, 7, the learned trial Judge held that the plaintiff has superior right of pre-emption in respect of land measuring 157 Kanals 1 Marla out of Kbasras Nos. 278, 281, 432/1, 412, 410, 431, 430, 263, 264, 233, 234 and 235 out of Khata No, 103 and Khata No, 84 situate in village Miali and that with regard to the rest of the suit, land he had no such right of pre-emption. On Issues Nos. 6 and 8, the learned trial Judge held the market price of the said land at Rs, 62,820. Accordingly n decree for possession through pre-emption of 157 Kanals 1 Marla on payment of Rs, 62,820 was granted to the plaintiff. Feeling aggrieved by this judgment and decree the plaintiff/respondent went in appeal to the Court of District Judge, D. I. Khan who vide his judgment and decree dated 25-11-1982 accepted the appeal to the extent that the market price of the land decreed was fixed at Rs, 39,262 instead of Rs, 62,820 ; hence the present revision petition by the defendant-vendee.
4. I have heard the learned counsel for the parties and have gone through the record of the case.
The only question for determination in this civil revision is price of the suit land. Learned counsel for the petitioner contended that since the land was sold through a registered sale-deed, it was rightly held by the learned trial Judge that the price of the land was that paid before the Sub-Registrar.
Under section 58 of the Registration Act presumption of truth is attached to the endorsement of the Sub-Registrar on the back of sale-deed but it is also true that this presumption is rebuttable. In Malik Wahid Bakhsh v. Ch. Muhammad Shaft (1), it was held that :- "So far as the endorsement of the Sub-Registrar on the back of the sale-deed is concerned, the presumption of truth is attached thereto but the same is rebuttable. Even in the presence of such endorsement it is always open to a pre-emptor to show that the sale price as entered in .The endorsement is not the genuine actual sale price. If he proves to the satisfaction of the Court that market-value of such property is muchless than the price entered in the sale-deed then onus will shift to the vendee to show as to why he paid so much amount in excess of the market price being the actual price. It is possible that fictitious amount of price may be shown in the sale-deed by the parties concerned and the same may also be paid before the Registrar but if it is otherwise found to be fictitious one that does not mean that such entry in the sale-deed or endorsement of the Registrar to that effect is sufficient to constitute payment of price for the purpose of Pre-emption Act. In such a case genuine payment is to be ascertained which can be determined only by taking ill the relevant circumstances into consideration."
This view is further represented in Syed Abid Humetin Shah etc. v. Jalal Din {{FOOT NOTE}}
(1) PLD 1976 Leh, 1069 {{FOOT NOTE}} etc. (1) wherein the Honourable Judges of Division Bench hold that the endorsement of the Sub- Registrar on the registered sale-deed cannot presumption attached to the endorsement made by the Registering Officer I rebuttable. Thus, the contention of the learned counsel for the petitioner- vend. That questioned finds no place for all practical purposes. If from record it is proved that the excessive amount was paid it can be validly presumed that it was so paid with a view to burden the prospective pre-emptor with extra charges in case of pre-emption.
5. The price of the suit land according to the statement of the Patwari on the basis of five-yearly average comes to Rs, 5,078.18. The plaintiff-preemptor in the plaint fixed the market value of the suit land at Rs, 5,000. In the registered sale-deed, however, the sale price of the suit land has been shown as Rs, 1,14,660. There is obviously alarming. Disparity between the average as per the calculation of the 5 years and the one shown as sale-consideration. It was the result of the difference as shown above that the learned trial Judge appointed a Commissioner to ascertain the market value of the suit land. The Commissioner so appointed fixed the market value of the suit land at Rs, 250 per. Kenai. This report of the local Commissioner was not objected to by either of the parties. In nada: Hussain and others v. Gulab and another (2), it was held that :- "In our opinion when it is alleged that the sale price is fictitious and into the deed for the purpose of defeating pre-emption, it is open to the pre-emptor to give evidence to show that the market price is far below than stated in the sale-deed. If he gave such evidence to the satisfaction of the Court, the latter is quite justified in arriving at it C own calculation as to what is the real consideration, and this not withstanding, that it is proved that the amount stated in the deed was paid before the Sub- Registrar. It is of course open to the vendee to show that there were special circumstances why he was ready to give and he did give the actual price mentioned in the deed."
' Nowhere the vendee-petitioner has admitted payment of the excessive amount muchless the state or to prove that he paid the excessive amount under some special circumstances or for particular considerations. As stated earlier the record does suggest that the amount if at all paid before the Sub-Registrar was highly non-comformable with the market-value. Once it was proved that vendee-petitioner did pay the excessive amount, it was for him to justify through reliable evidence the payment thereof in a bona fide manner. He having failed to lead any evidence in support of the excessive amount having been paid, the endorsement of the Sub-Registrar here rightly been rebutted by the learned Appellate Court. It is now well-settled that in suits of pre- emption report of local Commissioner facilitates the Court in formulating its opinion and the appointment of Commissioner in such circumstances advances the cause of justice. In Rehman Dad and another v. Major Raja Sajawal Khan etc. (3), it was held :- "In a case of this nature the report of the Local Commissioner subject to the objection if any would have facilitated the Court t formulate its opinion on the question and as such it would have, been judicious exercise of discretion if the application was allowed. The delay was, therefore, not a factor which could have come in the way of exercise {{FOOT NOTE}}
(1) PLD 1981 Lah. 349 (2) PLD 1954 Lab. 471
(3) 1976SCM11,. 350 {{FOOT NOTE}} of discretion for such a course would have advanced the cause of justice."
' In the instant case no objection whatsoever was raised by the vendee-defendant and keeping in view the disparity in the amount paid before the Sub-Registrar and the actual market value of the suit land, it was incumbent upon the trial Judge to have given weight to the report of the Local Commissioner. The learned District Judge, therefore, rightly placed reliance on the report of the Local Commissioner. I see no material irregularity or illegality on the part of the learned lower Appellate Court.
6. On the view of the matter that I take, I see no reason to interfere with conclusion arrived at by the learned District Judge and accordingly dismiss this revision petition but keeping in view the fact that two Courts below were at variance with regard to the market price of the suit land, I would leave the parties the bear their own costs.
1111,