1. ' These two appeals arise out of the same judgment and decree passed by Civil Judge First Class, Khairpur dated 30th October, 1969 in Suit No.26/63 which was a pre-emption suit decreed in favour of Muhammad Usman and Muhammad Ashraf to the extent of 44 acres and 25 ghuntas at the price of Rs.68,820 which were to be deposited within 3 months of the decree.
2. ' The pre-emptors namely Muhammad Usman and Muhammad Ashraf both sons of Mitho have appealed in Civil Appeal No.2/70 against the judgment and decree on the ground that they have been directed to pay excessive price for the said land. While Rehmatullah has appealed in Civil Appeal No.8/70 challenging that the decree of pre-emption was uncalled for and was not correctly made.
3. ' The relevant facts are that Rehmatullah purchased 54 acres and 7 ghuntas of land in Deh Arraro, Taluka Faiz Ganj, District Khairpur by a sale-deed registered on 7-6-1962 from Moosa Khan, Muhammad All and Shafi Muhammad for the alleged consideration of Rs.80,000. On 4-6-1963 Usman and Ashraf filed pre-emption suit No.26/63 against Rehmatullah, Moosa, Muhammad All and Shafi Muhammad for Declaration and pre-emption of the said agricultural land alleging that the land had been sold actually for Rs.20,000 but more consideration has been shown. It was also alleged that Suit No.23/61 for pre-emption of share of 29 new paisas in respect of Survey Nos. 827, 893, 897 had been filed by the pre-emptors against Muhammad All and Muhammad Umer on 2-5- 1961 which was decreed on 23-12-1961 while the sale-deed by the sellers of the disputed land was registered on 7-6-1962. The pre-emptors had claimed as Shafee (Sharik) as owners of Portions of Survey Nos.827, 893 and 897. They had also claimed pre-emption as Shafei (Khalit) having rights of way and water in and over the suit land for more than 25 years. Inasmuch as the small Kasis which take off from the main water-courses pass from the disputed suit survey numbers and give water to the land of the plaintiffs and vice versa. It was further alleged that as regards Survey Nos.695, 698, 702 and 825 the plaintiffs enjoy the rights of easement of way and water inasmuch as they had right of way in and over the suit land of coming and going to their lands, village as well as its surrounding villages which right they have been using for 25 years. The plaintiffs had also claimed to be the Shafee (Jur) as they owned land adjoining the suit land inasmuch us the plaintiffs were owners of portions of Survey Nos. 827, 893, 897 oral ~torn of 804, 805, 896 1025, 1028, 816, 812 and n portion or NON in the same Deli Arraro. Plaintiffs had alleged that hey came to know of the sale on 10-6-1962 and immediately declared their intention to pre-empt the land and on the same day they made the formal demand to the respondent Rehmatullah to re-convey the said property to them. Decree for possession of land on payment of Rs.20,000 was prayed and a Declaration was also sought that 29 paisas share in Survey Nos.827, 893 and 897 belonged to the pre-emptors.
4. ' The suit was resisted by Rehmatullah and the alleged sellers who filed separate statements and they claimed that the sale has been affected for Rs.80,000 and that the 29 paisas share in Survey Nos. 827, 893 & 897 had been re-conveyed by Muhammad timer to Moosa, Muhammad Ali and Shafi Muhammad on 26-7-1963. It was alleged that the lands in the said Deh had been sold for more than Rs.25 per acres. It was denied that the pre-emptors were either Shafei (Sharik) or Shafee (Khalit) or Shafee (Jar). It was asserted that the pre-emptors have no acres from the suit land and that Survey Nos. fall on Western side of Mirwah Canal. It was denied that pre-emptors were owners of portions of Survey Nos.827, 893 and 897 because they had not acquired any interest in those lands before they were sold to Moosa, Muhammad All and Shafi. It was also claimed that Rehmatullah owns Survey Nos. 1050, 1051 near the suit land and he has about 80 acres of land in the same Deh. It was also alleged that the pre-emptors knew about the sale immediately after its registration and they had not made any Talabs and that suit was filed to harass the defendant and the proper court-fees had not been paid. Moosa, Muhammad Ali and Shafi had also stated that they had sold the land for Rs.80,000 and that 29 new paisas share of Survey Nos. 827, 893 & 897 had been sold by Muhammad Ali to Muhammad timer has been sold back by Muhammad timer on 26-7-1963. It was also alleged that rate of land in the area was between Rs.1,500 and Rs.2,500 per acre. It was denied that the pre-emptors enjoyed any right of way or water in Survey Nos. 695, 698, 792, 825, on the contrary they had no such access. It was further urged that the said Survey Nos. fall on the Western side of Mir Wah Canal. It was denied that pre-emptors were owners of portions of Survey Nos. 827, 893 and 897 because they had not acquired any interest therein. In respect of Survey Nos. 1050 and 1051 it was averred that Rehmatullah owned Survey Nos.1050 and 1051 and he has about 80 acres of land in the same Deh and there are only four Servey Nos. in between Survey Nos.1050 and 1051 and the suit land.
5. ' Issues were framed as to whether the plaintiffs had made pre emption demands and whether the plaintiffs were Shafei of the suit land and what was the real consideration of the suit land and as to whether the plaintiffs had lost their rights of pre-emption by acquiescence. Issue about insufficiency of stamp paper are also framed. An issue was also framed whether defendant No.5 namely Parial was owner of 12 annas share in Survey Nos.826 and 11.3 annas share in Survey No.828 which could not be sold to Rehmatullah, and whether Parial was in possession of the said Survey Nos. Another issue was whether the plaintiff were the owners of 4 annas and 7 pies share (29 paisas) in Survey .Nos. 827, 893 and 897 and were entitled to possession of such share.
6. ' On behalf of Muhammad Usman and Ashraf plaintiffs the following witnesses were examined:- ' Noor Nabi, Gul Hasan, Shahan, Muhammad Usman and Muhammad Ashraf.
7. ' The plaintiffs then closed their side. Thereafter for the defendants the depositions of Allah Bux, Muhammad Bux and Rehmatullah were recorded. The deposition of Haji Sanwar was recorded on behalf of Muhammad Parial defendant.
8. ' By Judgment dated 30-10-1969 the pre-emption suit No.26/63 of Muhammad Usman and Muhammad Ashraf was decreed for the suit land except the share of defendant No.5 in Survey Nos.828, 827 and the share of the plaintiffs in Survey Nos. 827, 893 and 897 on the condition that the plaintiffs pay Rs.68,800 within 3 months from the date of decree. It was also declared that Usman and Ashraf were owners of 0-4-8 share in Survey Nos. 827, 893, 897. It was also declared that Parial defendant No.5 was owner of 12 annas share in Survey No.826 and 11.3 annas share in Survey No.828. Both the sides appealed from that decree.
9. ' In first appeal No.2/70 the contention of Mr.Khalid M.Ishaque for the appellants is that the learned Civil Judge has failed to correctly appreciate the evidence in respect of the value of the land. His submission was that the plaintiff/pre-emptors had proved that the land had been purchased by Rehmatullah for Rs.20,000 and hence the appellant in appeal No.2/70 should have been ordered to deposit an amount proportionate to the total value of the entire land of 54.7 acres at Rs.20,000 and then deducting the proportionate value of the share of the land of Parial in Survey Nos.826 and 828 and of Usman and Ashraf in respect of Survey Nos.827, 893 and 897.
10. ' I have read the evidence in this respect with the learned counsel of the appellant and I find that it is difficult to believe the statement of Shahan and Hameed as well as Usman and Ashraf that Rehmatullah had told them that he had purchased the land from Moosa, Muhammad Ali and Shafi Muhammad for a sum of Rs.20,000. Once Rehmatullah had got a sale-deed of this land executed in his favour in June, 1962 on 6-6-1962 showing the consideration at Rs.80,000. It is not easy to believe that he will start admitting before various persons that he had purchased the land for Rs.20,000. Particularly Rehmatullah could not make such a damaging statement in the presence of the appellants in this appeal who had made the alleged demands of pre-emption from him. It was but natural for him to tell the pre-emptors that he had purchased the land for Rs.80,000 and not for Rs.20,000. The appellants submission in this respect hardly appears to be plausible. Rehmatullah having secured a sale-deed for Rs.80,000 could not have admitted that he had purchased the land for Rs.20,000. The statements of all the witnesses of the Plaintiff in this respect do not appeal to reason.. Rehmatullah had denied that any Talab had been made from him by the Plaintiffs in presence of other P.Ws. in this respect and although his statement is alone as against the statement of these four witnesses but I am inclined to believe him. Whether was the sense of paying stamp duty on Rs.80,000 sale consideration when Rehmatullah was to make such damaging admissions within 3 days of the registration of sale.
11. ' Moreover, Rehmatullah has deposed that he has paid Rs.80,000 as consideration of the suit land and he has been supported to the extent of the value of the land by D.W.1 Muhammad Bux who has stated that the land in this area have been sold from Rs.1,500 to Rs.2,500 per acre although he could not give the name of any person who had purchased or sold any land.
12. ' Allah Bux D.W.2 has supported Rehmatullah by stating that he purchased the land for Rs.80,000 and stated that Rs.60,000 were paid in his presence. In cross-examination he stated that Ghulam Nabi Chang has sold the land at the rate of Rs.2,500 to Ahasan Ali. D.W.3 Zaman Shah has also stated that Rehmatullah purchased the suit land for Rs.80,000 and paid Rs.60,000 in his presence, in cross-examination he stated that they were 15 or 16 persons when Rs.60,000 were paid but no receipt was taken. He denied that he carried medical practice in the Otak of Rehamatullah. Of course Rehmatullah had given details of the payment made by him and he had given reason as to why the entire payment was not made in the presence of Sub-Registrar. He stated that dacoit Moharram Janvari was very active in his operations at that time and, therefore, the sellers asked him to make the bulk of payment at their village. In cross-examination he stated that 7 or 8 persons were present when by paid Rs.60,000 to the sellers, and he paid Rs.17,600 in his Otak in presence of Ghulam Hussain and he paid Rs.2,400 in the presence of the Sub-Registrar. He denied that he had executed the promissory note in the sum of Rs.25,000 in favour of Moosa and others.
13. ' Muhammad Moosa D.W. had stated on oath that they sold the suit land for Rs.80,000 and that he had received Rs.60,000 one day before the writing of the sale-deed and Rs.17,000 after writing of the sale-deed at Pacca Chang and Rs.2,400 before Sub-Registrar. He denied that they had sold the land for Rs.20,000. He stated in cross-examination that they had taken money from Rehmatullah in the village due to fear of dacoity by Moharram. He stated that the market value of land in their area was from Rs.1,500 to Rs.2,500. Apart from the above-mentioned oral depositions in respect of the consideration of the land being Rs.84,000 as deposed by defendant Rehmatullah and others D.Ws. and the opposing stand of the appellants that the entire land was sold only for Rs.20,000, there are some sale-deeds to be referred to. The appellants filed sale-deeds Exhs. 96 to 99 and 151 to 155 showing that the sale price of the land was between Rs.500 and Rs.1,700 per acre while the respondents, in this appeal, produced three sale-deeds. In one such sale-deed 1.39 acres was sold for Rs.4,000 and another 1.39 acres for Rs.5,000 while 1 acre was sold for Rs.1,800 and 3.17 acres were sold for Rs.3,000 vide Exh.
141. It, therefore, appears that the price of the land in this area varied from Rs.400 per acre to Rs.2,500 per acre. Apart from this the plaintiff No.1 Usman had admitted that he would not sell his land which was adjacent to the suit land for Rs.1,000 per acre while plaintiff No.2 Ashraf had admitted that they would be prepared to purchase the suit land for Rs.80,000 because it was surrounding their land.
14. ' In the above circumstances the view of the Civil Judge that the sale consideration show in the sale-deed being Rs.80,000 for 54.7 acres could be the correct consideration of the suit land is not far wrong because the price comes to about Rs.1,500 per acre and considering that Rehmatullah had land in this very Deh, it could be probable that he had agreed to pay Rs.80,000 for this land.
15. ' I find nothing unreasonable in the order of the Civil Judge in this respect when he was come to the finding that Rs.80,000 was the consideration of the suit land. Merely because Rs.60,000 had been paid before the registration of the sale-deed could not make the consideration as not having been paid. There was-a definite averment in the impugned sale-deed Exh. 21 wherein the sellers had admitted the receipt of Rs.60,000 as earnest money. Another matter of considerable importance in this respondent is that these very sellers of the land had purchased only on 17-12-1971, 1.39 acres of land for Rs,5,000 from one Adho son of Fateh Muhammad vide Exh.123 and once the sellers had paid about Rs.2,500 per acre in December, 1961 in the same Deh, it is not possible that these sellers would sell their own 54.7 acres of land in the same Deh in June, 1962 for a paltry sum of Rs.20,000 which would amount to a price of Rs.350 per acre. Therefore there is no force in C.A.No.2/70.
16. ' In the other Appeal No.8/1970 Mr.G.H.Abbasi, learned counsel for the appellant submitted that there was no right of pre-emption established in the pre-emptors in respect of S.Nos.827, 893 and 897 as the respondent's claim was based upon the sale of those S.Nos. by Muhammad All in favour of Umer for which respondents filed pre-emption suit and got a decree on 23-12-1961 but that decree was appealed from and it was only on 21-1-1963 that the said appeal had been concluded and by that time this appellant had purchased all those S. Nos. on 7-6-1962 from those sellers. He submitted that he was a purchaser of the property without any notice and for consideration and, therefore, the sale in his favour was protected by section 41 of the Transfer of Property Act. I do not agree with this submission. Section 41 of the Transfer of Property Act, 1872 talks of transfer of property by the ostensible owner but the same is 'not the case here. There was no question of transfer of these three S.Nos. by any ostensible owner who sold the property with the consent, express or implied of the true owners of the immovable property. The sale was made by the true owners namely Muhammad Ali, Moosa Khan and Shafi Muhammad and, therefore, section 41 is not attracted. In fact the case in question is fully covered by section 52 of the Transfer of Property Act which provides that, "if during the pendency in any Court of competent jurisdiction of any suit or proceeding which is not collusive and in which any right to immovable property is directly or specifically in question, any party thereto transfers or otherwise deals with the property without the authority of the Court and beyond the terms imposed by it, such transfer or dealing shall not in any manner affect the rights of any other party thereto under any decree or order which may be made therein, and it would be immaterial whether the transferee had or had no notice of the pending suit or proceeding". The last sentence of section. 52 is very material as the same stresses that lack of notice by the transferee is immaterial. Therefore, in this case since pre-emption Suit 23/1961 had been filed by Muhammad Usman against Muhammad Umer and Muhammad Ali and it had even been decreed on 23-12-1961, much before the impugned sale on 7-6-1962, therefore, section 52 was clearly attracted and the sale in favour of the present appellants on 7-6-1962 was hit by the doctrine of lis pendente and did not affect the rights acquired by respondents 1 and 2 by decree o 23-12-1961. This submission is, therefore, rejected and it is held that the respondents 1 and 2 had acquired their rights in respect of pre emption of S.Nos.827, 893 and 897 by decree dated 23-12-1961 and they had, therefore, became the owners of the 29 paisas share in respect of those S.Nos. because they had deposited the decretal amount in the said suit in time.
17. ' Mr. Abbasi then submitted general arguments that the pre-emption was an exceedingly feeble right and slightest deviation from the formalities required by law will prevent its accrual as held in AIR 1946 Cal.
135. However, I find that in I L R 7 All. 775 Mahmood, J had observed that law as to pre-emption is a religious usage or institution. Therefore, it cannot be called a feeble right. Mr. Abbasi also referred to AIR 1946 Sind 55 where it was held that owner of land which got the same water from Government watercourse, the bed of the watercourse being the property of the Government, he cannot claim the right of pre-emption as co-sharer in appendages with the land of neighbours who get water from the same watercourse. This ruling was also referred in respect of contention that right of pre- emption based on vicinage is limited to property of small extent in which right of privacy is involved and not to large estates. But this ruling in fact is against large holders of agricultural land as would appear from the following passage appearing at page 57:- "This appears to me, judged from any point of view, an extravagant claim. I do not think that it was ever intended that pre-emption on the ground of vicinage should be vested in neighbouring zamindars, large holders of agricultural lands, merely because at one place or another one survey number of agricultural land should adjoin another survey number of agricul tural land belonging to a neighbouring zamindar. No inconvenience whatever attaches such holding which can be watered without inconvenience from the same watercourse without the exercise of any right of easement."
18. 'In the present case these rulings are not much value after the findin that the pre-emptors were co-sharers in respect of 29 paisa share in S.Nos.827, 893 and 897 which were purchased by the appellant from the sellers Moosa and others on 7-6-1962. That being the position obviously the claim of the respondents as Shafei Sharik (co-owners) in respect of these three S.Nos. is clearly established subject to proof o demand and it cannot be defeated because Shafei (Sharik) has undivided rights of pre-emption in respect of land which is party owned by him. It is, therefore, obvious that the claim of the respondents in respect of these three S.Nos. is undoubted and cannot be disallowed by any method if the demand was proved.
19. ' Thereafter Mr. Abbasi contended that the share of the respondents in the said three S.Nos. partly owned by them to the extent of 29 paisa share is equivalent to 3.30 acres in area and, therefore, that should not be sufficient to pre-empt a large estate of 54.7 acres and for this he again relied upon AIR 1964 Sind 55 (57) where it was held that rights of Shafi Jar (vicinage) applies only to houses, gardens and small plots of land in which privacy is involved. This ruling is, however, relevant only for the purpose of pre-emption based on vicinage and not in respect of the claim based on co-ownership. Therefore, the claim of respondents based on co-ownership of S.Nos.827, 893 and 897 cannot be defeated even though the other area is large. In this respect it would be relevant to refer to Muslim Law of pre-emption by Muhammadullah Jang where in paragraph No.540 at page 703 it has been opined that pre-emption must be claimed in respect of whole of the property sold nothwithstanding that claimant is only one of the other joint pre-emptors. Even in Muslim Law by Saksena at page 777 it has been opined that the property sold to a single vendee must be pre-empted as a whole. Of course, there are certain exceptions provided in the above- referred two books where the pre-emptor, if he chooses, can apply for transfer of only that property which is the basis of claim of pre-emption and not the whole of the property sold. But that situation does not arise in this case because the pre-emptors had sought to pre-empt the whole of the property sold by respondents Moosa and others in favour of Rehmatullah and hence the pre- emption based on the right of Sharik could not be defeated on this plea alone.
20. ' Thereafter Mr. Abbasi stressed that only three S.Nos. 827, 893 and 897 may be pre-empted while rest of the property should be left out. I do not agree with this submission in view of what has already been reasoned out above.
21. ' The learned counsel for the appellant then stressed that the claim of the pre-emptors based on vicinage was in respect of a small number of plots and hence the whole of the property should not be affected by the same. I have heard learned counsel at length in respect of these submissions and he had referred to a number of rulings in this regard, where it was observed that right of vicinage should not be extended to large properties sought to be pre-empted which are not exactly continuous to the land of the pre-emptors. But in the particular circumstances of this case I do not find any justification for the said submission. I may note here that the S.Nos. of property in dispute are situated on eastern and western sides of Mirwah (branch of canal) and Exh.93 is a sketch showing the land purchased by the respondent Rehmatullah from the other respondents as well as the land of Usman and Ashraf respondents. S.Nos. 702, 698 and 825 of the disputed land on the western side of Mirwah are in the way of respondents Usman and Ashraf when they proceed from their own land S.Nos.896 and 894 to their village Sher Muhammad. They have to pass between S.Nos. 698 and 825 and they have to pass through S.No.702 as there is no other way for them to pass. This position has not been denied any where and, therefore, it is obvious that the respondents Usman and Ashraf had a right of appendage or easement in respect of these lands.
22. Similarly the said sketch shows that on the eastern side of Mirwah the S.Nos.893, 897 and 827, partially belonging to respondents Usman and Ashraf, and S.Nos.894, 895, 896, 1025 and 1028 fully owned by said respondents are situated. There are many S.Nos. of the disputed land contiguous to these S.Nos. S.No.827 is itself contiguous to S.No.894 of the respondents Usman and Ashraf and S.No.890 is contiguous to S.No.893 of Usman and Ashraf and S.No.892 is contiguous to S.No.895 of Usman and Ashraf and similarly S.No.893 is also contiguous to S.No.894 of Usman and Ashraf and even S.No.897 is contiguous to S.Nos. 894 and 896 of Usman and Ashraf. In these circumstances it is apparent that a good number of S.Nos. of the land purchased by the appellant are contiguous to the S.Nos. of land partially and fully owned by respondents Usman and Ashraf. Therefore, it is not a case of a small portion of land claiming a very big estate on the basis of pre emption by vicinage. In fact I have calculated that about 32.13 acres out of 54.7 acres of the disputed land is either shared or is contiguous to the land of the respondents or is used by the respondents for their right of way. I have not taken into calculation the claim of the respondents based on the watercourse and nalies being common to each other which is quite apparent on the face of the sketch Exh.93. It is, therefore, obvious that the respondents could have a fair claim of pre-emption based on vicinage against the land of the appellant clearly established on the record. I find that respondent Rehmatullah had clearly admitted in cross-examination that land of the plaintiff on eastern side was adjacent to the suit land. This admission of Rehmatullah is in itself enough to reject the argument of the counsel of the appellant in this regard.
23. 'Mr. Abbasi had made a submission that three claims of Shufa namely Shafei Jar, Shafei Khalit and Shafei Sharik should not be confused with each other. But in the present case there is no question of confusion. If there had been any competition between different types of Shafei then the Shafei Sharik (co-sharer) has a preference over the other two Shafeis. And similarly Shafei Jar (have contiguous land or the vicinage) can defeat the claim of Shafei Khalit (having common easements). But is this case it is the same persons who have claim of three types of pre-emption in respect of disputed land and had in fact proved them and therefore, such claim could be obviously upheld. It is however, a different matter as to whether demand in the case has been proved or not which I would deal with now.
24. ' Counsel for the appellant had submitted that the demand of Shufa had to be made in a particular manner and that if there was any deficiency in the formal demand then the claim should be dismissed. The learned counsel first submitted that the evidence produced by the respondents in respect of demand is a tailor made evidence and although it is quite consistent with each other on the question of the initial and subsequent demands but when viewed in the light of the cross- examination directed against the witnesses, it appears that no demand had been made at all and the respondents have taken too long in filing a pre emption case which he filed just three days before the expiry of the time of one year. Submission was that 6th June, 1962 was the alleged sale while the notice of the sale by the pre-emptors is alleged to have been received on 10-6-1962 when the two demands were allegedly made, and yet the plaintiff waited till 4-6-1963 to file the suit which shows that they were not serious in exercising their rights of pre-emption and this abnormal delay throws doubt upon their demand, Mr. Khalid Ishaque had submitted that the respondents were waiting for the success in the appeal which had been filed by Umer and Muhammad All against the respondents in respect of pre-emption of S.Nos. 827, 893 and 897. However, even that appeal was decided on 21-1-1963 and yet plaintiff waited for another four months and 13 days to file their suit of pre emption in respect of disputed land. It does show a hesitancy on the part of the respondents to get their rights of pre-emption established in a Court of law. The hesitancy may be either on account of trying to create evidence or it may be on account of the price of the land being Rs.80,000. However, there is nothing definite on record as to why respondent waited for almost one year before filing the suit for pre emption.
25. ' However, more important submission made by Mr. Abbasi is when he has challenged the deposition of Shahan as being untrue. He submitted that P.W. Shahan' who is the only person who is alleged to have informed the respondents Usman and Ashraf about the disputed sale, is a resident of village Bagharwara in Nara which is situated 100 miles away from the disputed land and, therefore, witness Shahan had hardly any business to be near the disputed land at that time.
26. Of course, Shahan has stated that he had one house at village Sher Muhammad and other house at Nara. I find that this witness appears to be well conversant with the situation at Nara rather than with the situation at village Sher Muhammad. He knows as to who was the Chairman in bagharwara but he does not know about that matter in respect of village Sher Muhammad.
27. Moreover the claim of this witness that he is resident of two places 100 miles apart from each other is rather a large claim to be believed inasmuch as he is merely a Hari of the land and has been going about asking for land from different people. His claim is that on 10-6-1962 he had come to ask for land from Moosa who told him that he had sold the same to Rehmatullah for Rs.20,000. In the first instance coming to Moosa for having the land for cultivation is rather difficult to believe because this witness has himself stated that two years earlier he had approached Moosa for that purpose but Moosa had declined. Why then again this man shows so keen interest in the land that he had come to ask for it again when this land was in the cultivation of Allah Bux P.W. He stated that he cultivated it at the time when he was only 15/16 years of age without a beard and even after 18 years he had again come to ask for this land. Moreover, one cannot understand as to why Moosa was so prompt in volunteering the information to this person that he had sold the land and even gave the information about the person to whom he sold the land and stated even the price which he secured. Strangely the price quoted by Rehmatullah is not even the price shown in the sale- deed viz. Rs.80,000 but only Rs.20,000 which does not appear to be natural. Why should Moosa, within four days of the execution of the sale-deed by him for Rs.80,000 decide on his own to reduce the sale consideration to Rs.20,000 and that too by oral statement to a person who was alleged to be his Hari about 18 years ago and to whom he had refused to give Hariship of this very land two years earlier. The story does not appear to be plausible. In fact Shahan has given himself out by showing keen interest in the respondents Usman and Ashraf when he is alleged to have told Mossa as to why he did not sell the land to Usman and Ashraf. A man who is so keen to get the land sold to Usman and Ashraf that he is protesting to Moosa about the sale of the land to others, could be a willing witness to support the case of Usman and Ashraf and is therefore, not worth being believed.
28. ' On top of it Shahan stated that when Usman and Ashraf went with him and Hameed to Rehmatullah and made the second demand of pre-emption then Rehmatullah admitted before them that he had purchased the land for Rs.20,000. This statement is inherently unbelievable. How could Rehmatullah make such an admission which is against the price shown in the sale-deed which was registered only four days before. A purchaser of property who pays Rs.80,000 for consideration of sale is not expected to admit that he has paid only Rs.20,000 as price. This would be too foolish a statement to be made by him before persons who have come to pre-empt the land purchased by him. Rehmatullah has denied that any demand was made from him or that plaintiffs had brought money to him in the presence of witnesses. Rehmatullah appears to be speaking the truth.
29. ' Even if it be assumed that only Rs.20,000 had actually been paid as the price of the disputed land and that Rs.80,000 had been shown in the sale-deed as puffed up price, then again why should Rehmatullah not insist before the pre-emptors that in fact the price was Rs.80,000 and not Rs.20,000. After all the purpose of showing the enhanced price of Rs.80,000 could really be to discourage the would-be-pre-emptors of the sale to desist from making the demand of pre- emption and, therefore, the purchaser should go on proclaiming at the top of his voice that he has purchased the property for Rs.80,000 but Shahan wants us to believe that Rehmatullah admitted before the pre-emptors after their demand of pre-emption that he had purchased the property for Rs.20,000 only and he would not sell it to them. This is inherently impossible to be true. Why should Rehmatullah make such a damaging statement before those very persons for whose sake the allegedly puffed up price was shown in the sale-deed. Such a statement could be believed only if we hold that Rehmatullah, was a person who had lost all sorts of proportions, but that does not seem to be true.
30. ' Mr. Khalid Ishaque had submitted that a big Zamindar could have made such a boastful statement as a sort of challenge to the pre-emptors. This explanation does not appear to me to be correct because there is nothing to suggest that he was a boastful man and the mere allegation that he had shown puffed up price in the sale-deed would indicate that such a person was a cautious and calculating person and not a boastful man. In cross-examination Rehmatullah has stated that he did not have a gun licence therefore, this man does not appear to be boastful as otherwise he should have a gun licence to show his pomp and splendour.
31. ' The result is that the statement of Shahan that Rehmatullah made admission that he purchased land for Rs.20,000 is held to be untrue and therefore, it appears that Shahan neither went to Moosa nor did he witness the making of the second Talab or demand of pre-emption being made from Rehmatullah by the respondents in this appeal. He has made his statement only because he was a tribe man of Usman and Ashraf.
32. ' The above discussion in respect of the inherently improbability of Rehmatullah making admission about price of the purchase of land to be only Rs.20,000 is equally applicable to the statements of Usman, Ashraf and Hameed and therefore, to that extent their statements are unbelievable and it appears that these persons did not go to Rehmatullah as otherwise Rehmatullah would have jumped at the mention of price of Rs.20,000 and would have at once protested that he had paid the price of Rs.80,000 for which he had paid heavy stamp duty. Therefore, it is open to grave about whether the respondents Usman and Ashraf ever made the second demand from Rehmatullah or at least made a correct demand of pre-emption by offering the amount of Rs.80,000 to him as price of pre-empted land.
33. ' Even otherwise the statements of Shahan, Abdul Hameed, Usman and Ashraf appear to be quite in conflict with each other in respect of amount of money which the plaintiffs Usman and Ashraf had or carried with them at the time of making the second demand before Rehmatullah. Shahan stated that he did not see money with the plaintiffs but they said that they had the money i.e. Rs.20,000 and that plaintiffs showed the money to the defendant Rehmatullah. As against that Abdul Hameed stated that the plainfiffs had told him that they were taking Rs.20,000 but did not show the money in his presence. Therefore, statement of Shahan and Hameed is contradictory with each other to the extent of money being shown to Rehmatullah. On the other hand, Usman, plaintiff stated that he had some money in his pocket but he could not say how much. He asserted that it was more than Rs.5,000 but less than Rs.10,000 he voluntarily stated that he had told the witness that he had Rs.20,000. Therefore, this man Usman had made a misstatement before the other witnesses that he had Rs.20,000 while in fact he did not have even Rs.10,000 with him and hence his statement is basically untrue. He did not state that he had shown any money to Rehmatullah at the time of making the demand. It is, therefore, obvious that Shahan was quite wrong when he stated that the money had been shown by the plaintiff to Rehmatullah in his presence. Ashraf, plaintiff in this respect stated that Usman told him that he had money himself but he did not tell them if he had Rs.20,000 therefore, to this extent the statement of Usman is wrong that he had told the witnesses that he had Rs.20,000 with him. Ashraf further stated that Usman told him that he had money in his pocket. Ashraf further went on to say that Usman must be having money in the pocket of shirt but I did not see. Ashraf was quite clear in his statement that they did not show the money to Rehmatullah. It is therefore, obvious that Usman, plaintiff did not even have Rs.10,000 in his pocket and, therefore, he could not show the same to Rehmatullah nor was it necessary to do so, but Shahan made a statement that the money was shown to Rehmatullah and further Usman made a wrong statement to the witnesses that he had Rs.20,000 with him when in fact he did not have that amount therefore, all these witnesses have made inconsistent statements with each other on the details of the amount carried by the plaintiff to Rehmatullah and whether it was shown to Rehmatullah or not.
34. ' In fact it is rather difficult to believe that Usman plaintiff who had gone to his land in the morning during summer days without any knowledge about the sale of land in favour of Rehmatullah would be carrying any large amount of money to the extent of even Rs.5,000. We have it from all the witnesses that Usman and Ashraf did not go to their house and therefore, their carrying any substantial amount of money to Rehmatullah is out of question and it therefore, appears that the witnesses have allowed their imagination to play its part and to this extent the story is unbelievable and it creates a great deal of doubt on the question whether the respondents Usman and Ashraf ever went to Rehmatullah for making the demand. I am, therefore, of the view that the plaintiffs have not been able to prove convincingly that they had made demand of pre-emption from Rehmatullah.
35. ' In fact the correct demand of pre-emption from Rehmatullah could only be when the respondents had offered to pay Rs.80,000 for this land but they never even deposed that they had offered to pay that amount to Rehmatullah and hence the formal demand is not correctly proved.
36. ' The period of eleven months and 25 days taken by the respondents Usman and Ashraf in filing the suit of pre-emption without a plausible and reasonable explanation of that delay also create a doubt upon the demand having been made by them from Rehmatullah.
37. ' The result of the above discussion is that the respondents Usman and Ashraf have failed to prove that a demand was ever made by them from Rehmatullah and in any case they have not even alleged that they had offered to pay Rs.80,000 to Rehmatullah as the price of the pre empted land.
38. On this ground the appeal of Rehmatullah has to succeed and the suit for pre-emption is bound to be dismissed. These are the reasons of the short order passed by me on 7-5-1984. Therefore, Appeal No.2/70 stands dismissed and Appeal No.8/70 stands allowed.