' Facts necessary for the disposal of this revision petition are that the petitioners purchased the land measuring 32 kanals 9 marlas including `Muciarraridari' rights in Khasra No, 1609 measuring 2 kanals 15 marlas through a registered sale-deed dated 7-9-1981. Mst. Nazir Begum brought a suit for possession of this land claiming superior right of pre-emption on the ground that she was `Yakjaddi' of the vendors and was also a co-sharer in the Khata. She further maintained that the suit land was actually sold for Rs, 15,000 but in order to defeat her right of pre-emption inflated price of Rs, 25,000 was fictitiously entered in the sale-deed. The suit was contested by the petitioners. Pleadings of the parties gave rise to the following issues :- "(1) Whether the plaintiff has superior right of pre-emption ? O.P.P.
(2) Whether the ostensible amount of Rs, 25,000 was fixed in good faith or actually paid? O.P.P.
(3) What was the market value of the suit land at the time of sale?
(4) Whether the suit was not properly valued for the purposes of court-fee : If so, what is the correct valuation and its effect?
(4) Relief."
2. Learned trial Court, after recording evidence of the parties, decreed the suit of respondent Mst.
Nazir Begum vide judgment dated 22-3-1983, holding that she was 'Yakjaddi' of the vendors and had, therefore, superior pre-emption right. On issue No, 2 regarding the payment of the sale price, the learned trial Court after noticing the discrepancies in the statements of the witnesses of the petitioners with respect to the payment of Rs, 10,000 as earnest money and taking into consideration the facts that only Rs, 15,000 were paid before the Sub-Registrar came to the conclusion that "the defendants have failed to prove the payment of the earnest amount of Rs, 10,000. The payment by the defendants of the consideration amount of Rs, 15,000 stands admitted by the plaintiff. I hold that the suit land was sold for Rs, 15,000." Plaintiff-respondent led no evidence on issue No, 3 regarding the market value of the suit land. Consequently, respondent's suit was decreed against a consideration of Rs, 15,000.
3. Petitioners filed an appeal against the aforesaid judgment and decree of the learned trial Court which was dismissed by the learned Additional District Judge, Attock by his judgment dated 8-5- 1984, upholding the aforementioned findings of the learned trial Court. Petitioners have come in revision against the judgments and decrees of the Courts below.
4. Learned counsel for the petitioners has not questioned the respondent's superior right of pre- emption. He, however, submitted that the decree in respect of 'Muqarraridari rights in Khasra No, 1609 measuring 2 kands 15 tnarlas could not be passed as these rights had been extinguished by Punjab Tenancy (Removal of Doubts and Amendment) Act, 1975. In support of his submissions, learned counsel has referred to Muhammad Ayub etc. v. Muhammad Sharif (1). In the precedent case, occupancy rights in the land in dispute sold on 10th December, 1953, were sought to be pre- empted by means of a suit filed on 7th December, 1954. The suit was resisted by the defendant on the ground, inter alia, that after the sale of the occupancy rights in the suit land, they became its full owner. An issue was also framed on this plea. Evidence was led to show that during the pendency of the suit, defendants-vendees have deposited Rs, 29-1-0 by way of compensation due to the landowners for the acquisition of the proprietary rights in accordance with section 114 of the Punjab Tenancy Act. Learned trial Court held that as a result of proprietary rights having been acquired by the defendant-vendees, occupancy rights in the suit land stood altogether extinguished and consequently suit of the plaintiff was dismissed as incompetent. On appeal learned appellate Court reversed the judgment of the learned trial Court. On further appeal, this Court after referring to the provisions
(1) 1970 Law Notes.596 of section 114 of Punjab Tenancy Act as amended by Punjab Tenancy (Amendment) Act VII of 1952, and Punjab Tenancy (Amendment) Rules, 1953, held that by virtue of these provisions "existing occupancy rights in the land in dispute were extinguished under the law." It was further held "Apparently the land had vested in the occupancy tenants with the deposit of Rs, 29-1-0 under receipt Exh. D. 2 on the 9th of December, 1955 by way of compensation due to the proprietors under subsection (2) of section 114 of the Act. It is thus evident that in this case the occupancy rights forming the subject-matter of the suit for pre-emption were altogether extinguished by the operation of the law and were no longer in existence. Therefore, the suit of the plaintiff-respondent for possession of the occupancy rights that had ceased to exist and were extinguished. The suit was, therefore, not competent and no decree could be passed for their possession".
5. By Punjab Tenancy (Removal of Doubts and Amendment) Act, 1975, section 114-A was added in the Punjab Tenancy Act which provided that after coming into force of the Punjab Tenancy (Removal of Doubts and Amendment) Ordinance, 1974, no person shall acquire or have Muciarrari- A dart rights in any land under any enactment or contract or other authority, and the existing Mugarraridari rights in respect of all lands other than the lands owned by or vesting in Government or any evacuee shall, on coming into force of the said Ordinance, be extinguished and the land in respect of which Muciarrandari rights are to be extinguished shall vest as hereinafter provided.
Subsection (2)(c) of section 114-A, which corresponds to subsection (2)(c) of section 114 of the Tenancy Act lays down that Muqarraridar who at the time of coming into force of the aforesaid Ordinance, occupies the land as such shall become owner of such land in its entirety on payment of compensation to the proprietor in cash at such rates and within such periods as may be prescribed by the Government by rules framed for that purpose, where he pays rent only in cash.
Necessary rules were also framed in 1977, which are known as Punjab Tenancy (Extinction of Mugarraridari Rights) Rules, 1977.
6. Although section 114-A providing for extinction of Mugarraridari rights was brought on the Statute book in 1975 and necessity rules were also framed in 1977, Muqarraridari rights in Khasra No, 1609 aforementioned continue to subsist till today. It is admitted, by the learned counsel that neither the vendors nor vendees paid the requisite compensation with the result that they did not acquire the ownership rights. Thus the aforesaid ruling cited by the learned counsel for the petitioners is distinguishable because in that case, vendee-defendants had acquired the proprietary rights during the pendency of the suit and it was, therefore, held that the occupancy rights having been altogether extinguished were no more in existence and as such the suit in respect of the sale of occupancy rights was incompetent. In the instant case, Muqarraridari rights in Khasra No, 1609 were in existence at the time of the sale and they continue to exist till today. That being so, pre- emption rights of the plaintiff-respondent in respect of the said Khasra number were not adversely affected. Even otherwise, right of pre-emption being a right of substitution, respondent having superior right of pre-emption would take over whatever rights were purchased by the petitioners.
Submission of the learned counsel is, therefore, without any merit.
8. Apart from what has been stated above, question of extinction of Muqarraridari rights was never raised by the petitioners before the trial Court with the result that no issue was framed thereon nor was any evidence led in that behalf. Petitioners cannot, therefore, agitate this question at the revisional stage for the first time.
9. Next submission made by the learned counsel was that as the learned trial Court found that the sale price of Rs, 25,000 entered in the sale-deed was not actually paid, it should have determined the market value of the suit land. This submission, too, is devoid of any force. It may be stated that the parties led no evidence in this case with regard to the market value of the suit land. Learned trial Court was, therefore, left with no other alternative but to pass the decree on payment of the sum which was found to have been actually paid to the vendor. Reference may be made to Natha Singh and others v. Sundar Singh and others (1) and Raj Muhammad v. Shah Muhammad etc. (2), where in it was held that in the absence of any evidence or any satisfactory evidence regarding the market value of the land, the sum found to have been actually paid may be taken to be the proper value. It may be pointed out that the learned counsel did not seriously dispute the findings of the learned Courts below regarding the payment of the actual price which finding, it may be stated, was recorded by both the learned Courts after proper appraisal of the entire evidence on the record and after taking into consideration the fact that though the sale price mentioned in the sale-deed was Rs, 25,000, petitioners paid only Rs, 15,000 before the Sub-Registrar. Evidence regarding the payment of Rs, 10,000 as earnest money has also been disbelieved by the two Courts below, and in my view, for good reasons. 1 have gone through the contents of the sale-deed Exh. D-
1. There is no stipulation in the sale-deed that Rs, 10,000 were paid to the vendor as earnest money.
In fact, it is stipulated that the entire amount Rs, 25,000 shall be paid before the Sub-Registrar but in point of fact, only Rs, 15,000 are shown to have been paid before the Sub-Registrar. Finding of the learned Courts below regarding the actual payment of sale price is, therefore, not open to any exception. Thus, in the absence of any evidence regarding the market-value, learned trial Court rightly decreed the suit on payment of Rs, 15,030, the amount found to have been actually paid by the petitioners. There is ample authority for the view that the best evidence of market value is the price paid. Refer to Ahmadji Khan v. Guirnir and another (3), in which it was held that "when it has once been found that the price was not fixed or paid in good faith, the Court has to decree pre- emption at the market price. I agree, however, with the view taken by the Divisional Judge, and it is one which is supported by a consensus of Judicial Authority that the price proved actually to have been paid is the best test of market value. As 1 have held that the price paid was Rs, 7,000, this sum will be taken as the market value on which preemption is to be decreed". No fault can, therefore, be found with the judgments of the learned Courts below decreeing the respondent's suit on payment of Rs, 15,000 which amount was held to have been actually paid to the vendor.
' For the foregoing reasons, I find no merit in this petition which is dismissed in limine.
(1) AIR 1926 Lah. 10 (2) PLD 1958 Azad .1 & K 27
(3) 75 1 C 271