1. NASIM HASAN SHAH, J.-- This judgment will dispose of Civil Appeal No. 129 of 1973, Civil Appeal No. 130 of 1973 and Civil Appeal No.131 of 1973 as these raise identical questions of law and facts.
2. By means of separate mutations of sale, the appellants in these three cases purchased certain areas of agricultural land situated in village Utraa, Tehsil Khushab, District Sargodha. In the first case, the ostensible sale price as mentioned in the mutation was Rs.2,500, in the second Rs.3,000 and in the third case Rs.3,500. Three separate pre-emption suits were filed by the respondent Akbar Khan and though he initially took the position that the sale price mentioned in the sale- mutations was inflated, but in the course of trial of the suit he accepted the ostensible sale price as mentioned in the relevant mutation in each case. All the three suits were, accordingly, decreed on that basis, even though the appellants vendee had asserted that the sale price had been erroneously described in the mutations by the omission of zero on the right hand side of the figures.
3. In other words, according to the vendee, the sale price fixed and paid, in good faith in the three cases was in fact Rs.25.000. Rs.30,000 and Rs.35,000 respectively and -not Rs.2,500, Rs.3,000 and Rs.3,500. However, these assertions were rejected by the Courts below.' Hence these appeals by leave of this Court.
4. Ch . Muhammad Anwar Buttar, learned counsel for the appellants in all the three cases has raised to contentions before us; firstly, that once a dispute had arisen between the parties as to the real sale price of the properties under pre-emption, there was an obligation on the trial court in terms of section 25(1) of the Punjab Pre-emption Act, 1913, to determine the market value, but no such determination was made in these cases. The second contention was that the recital in the mutations of sale could not be legally regarded as being conclusive on the point.
5. We observe that both these questions had formed the subject matter of issues between the parties in all the three suits. In Civil Appeal No. 129 of 1973, for instance, which arose from the suit in which the first sale was impugned, Issue No.7 was to the following effect:- ---(7) Whether the sum of Rs.25,000 (sic--the correct figure was Rs.2,500) was fixed in good faith or actually paid as the sale price of the suit land?" and Issue No.8 was as follows:- "(8) If Issue No.7 is not proved, then what was the market value of the suit property at the the of its sale?"
6. The learned trial Court discussing Issue No.7 observed:- "The defendant has examined Khushi Muhammad D.W.1, who was the General Attorney of the vendor at the the of the sale in question. He has testified that he had received Rs.2,500 as the sale price of the land in suit. However, his testimony pales into in significance in face of the copy of the mutation covering the transaction of the sale now sought to be impeached. The document (Exh.P.2) referred above fully evinces that Khushi Muhammad General Attorney of the vendor clearly admitted the receipt of Rs.2,500 as the sale price of the suit land before the Revenue Officer attesting the mutation. As such, the version of the defendant and the testimony of Khushi Muhammad D.W.1 seem to be an afterthought affair and the figment of the imagination of the defendant. The non-execution of the receipt, inspite of the considerable amount as sale price as now alleged by the defendant confirms this belief of mine. Had the version of the defendant any substance in it the District Council Fund which was to be paid proportionately before the attestation of mutation, should have been deposited on the alleged sale price and this factor could very easily be proved by the production of the receipt in that behalf. Since this piece of the evidence supports to have been purposely withheld the presumption necessarily goes against the defendant. The obvious conclusion is that the defendant has bitterly failed to prove that the sum of Rs.25.000 was fixed or paid the sale price of the suit land. It will not be out of place to mention here, that the efforts of the defendant to get recorded in the mutation, the amount of Rs.25,000 as sale price has met the fate of failure as according to the evidence on the record, his appeal against the mutation in dispute has been turned down by the learned Additional Commissioner, Sargodha. This factum goes a long way to disprove the contention of the defendant. Issue remains unproved."
7. The finding on the above issue was upheld by the Court of appeal (Additional District Judge, Sargodha), as also by the High Court in second appeal.
8. As regards Issue No. 8, the learned trial court observed as follows: - "None of the parties has taken any pains to produce any evidence which may be helpful for the ascertainment of the market value of the suit property. However, the matter has been simplified by the statement dated 10-9-1971 of the learned counsel of the plaintiff wherein he has admitted the sum of Rs.2,500 to be the sale price of the suit land as entered in the mutation of impugned sale. In the absence of any data, the same is taken to be the market price of the land in suit. Issue is decided accordingly."
9. Both the first and the second appellate Courts to upheld the finding on this issue. Thus, the first contention raised by the learned counsel for the appellants that the trial Court and should have determined the sale price under section .25(1) of the Punjab Pre-emption Act does not appear to have any force. Section 25(1) of the Act lays down:- "25(1),-- If in the case of a sale the parties are not agreed as 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 has been fixed in good faith or paid, and if it finds that the price was not so fixed or paid, it shall fix as the price for the purposes of the suit, the market-value of the land or property."
10. In this case, the counsel for the plaintiff pre-emptor, during the course of the trial had admitted that the price mentioned in the mutation was the correct sale price of the suit land. Thus, this case no longer remained a case in which the parties were not agreed "as to the price' at which the pre- emptor shall exercise his right of pre-emption". In the facts and circumstances of the case, therefore, section 25(1) was not attracted. We also agree with the Courts below that in the absence of any data being available on the record on which the market price could have been determined, the sale price, as mentioned in the sale mutation, which was accepted as correct by the plaintiff pre-emptor, could be acted upon without any further ado. The situation which emerged before the trial Court was that the 'plaintiff /pre-emptor was admitting that the sale price was Rs.2.500 and no evidence at all was 1 produced by the defendant (appellant herein) to refute the assertion that the sale price was not Rs.2,500. In these circumstances, the Courts below were justified in accepting the price mentioned in the sale-mutation and not disputed by the pre-emptor at the trial to be the correct and bona fide sale price and not suo motu embarking upon an enquiry to ascertain its market price.
11. As regards the second- contention that the recital in the mutation of sale could not be legally regarded as being conclusive on the point with regard to the value of the land; we feel that in the context the contention raised is merely of an academic value and does not really arise in this case.
12. The facts of this case reveal that the defendant), (appellant herein) did not care to adduce any evidence to refute the claim that the amount of the sale price mentioned in the sale-mutation was not fixed in good faith and he also failed to lead any evidence' whatever to prove that the market- value of the land in dispute was more than Rs.2,500. On the other hand one of the parties to the, dispute, namely, the pre-emptor accepted and admitted that the entry) with regard to the sale price in the mutation was correct. Thus it, was the statement made on behalf of the pre-emptor that the sale price was Rs. 2,500 that was the substantive and admissible evidence on the, point of price and not the entry in this regard made in the sale-mutation.
13. The result is that there is no force in these appeals, which are, accordingly, dismissed with costs.