These three Revision Petitions Nos.451 of 1986 (Haji Hayat Gul v. Mufti Ghazi Khan and others), 452 of 1986 (Mira Khan and others v. Mufti Ghazi Khan and others) and 453 of 1986 (Mira Khan and others v. Mufti Ghazi Khan and others) have arisen out of three independent Suits Nos.443/1 of 1984, 444/1 of 1984 and 445/1 of 1984, in the Court of Civil Judge, Charsadda against the three sale transactions detailed below. In Suit No.443/1 of 1984, the plaintiff pre-empted sale of land measuring 32 Kanals out of total land measuring 132 Kanals 10 Marlas detailed in the plaint situated in Mauza Mufti Abad, Tehsil Charsadda sold in favour of Haji Hayat Gul, petitioner in C.R. No.451 of 1986. This sale took place through Mutation No.503 for an ostensible sum of Rs.1,08,000 attested on 4-7-1981. It was alleged in the plaint that the sale took place for a total sum of Rs.16,000 i.e. At the rate of Rs.2,000 per jarib but in order to defeat the superior right of pre-emption of the plaintiff excessive sale consideration was fictitiously shown in the mutation. Right of pre-emption was based on co- sharership, contiguity, participation in immunities and appendages. The defendant-vendee in his written statement resisted the plaintiff's suit on several legal and factual pleas. The plaintiff's superior right of-pre-emption was denied, a sum of Rs.1,08,000 was stated to have been fixed m good faith and paid to the vendor, in addition to the District Council Fee of Rs.5,000. It was further stated that after the sale in his favour the defendant had made improvements in the suit land. The learned trial Judge framed as many as 10 issues in the case, the relevant herein being issues 6, 7, 8 and 9 pertaining to improvements, superior right of pre-emption, payment of sale consideration and market value respectively. The plaintiff m support of his case relied on the statement of Miraj Muhammad, Patwari Halqa (P.W.1), and appeared as his own witness. Dilawar son and General Attorney of Hayat Gul defendant appeared as D.W.1 and examined Ghulam Muhammad Lambardar as his witness. The trial Judge on consideration of the evidence produced by the parties decreed the plaintiff's suit on payment of Rs.48,364.80 the market value, assessed on the basis of the five years average of the sale transactions in the Mauza on 15-12-1984. The vendee's appeal was dismissed by the District Judge Peshawar Camp Charsadda on 13-7-1986.
In Suit No.444/1 of 1983, the plaintiff pre-empted sale of land measuring 502 Kanals 13 Marlas 7 Sarsais situated in Mauza Mufti Abad, Tehsil Charsadda sold in favour of Mira Khan and five others, petitioners in C.R. No.452 of 1986. This sale took place through Mutation No.506 for an ostensible sum of Rs.12,30,000 attested on 4-7-1981. It was alleged in the plaint that the sale took place for a total sum of Rs.2,50,000 but in order to defeat the superior right of pre-emption of the plaintiff excessive sale consideration was fictitiously shown in the mutation. Right of pre-emption was based on co-sharership, contiguity, participation in immunities and appendages. The defendant- vendees in their written statement resisted the plaintiffs suit on several legal and factual pleas. The plaintiff's superior right of pre-emption was denied, a sum of Rs.12,30,000 was stated to have been fixed in good faith and paid to the vendor, in addition to the District Council Fee of Rs.40,000. It was further stated that after the sale in their favour the defendants had made improvements in the suit land. The learned trial Judge framed as many as 9 issues in the case, the relevant herein being issues 5, 6, 7 and 8 pertaining to improvements, superior right of pre-emption, payment of sale consideration and market value respectively. The plaintiff in support of his case relied on the statement of Miraj Muhammad, Patwari Halqa, that of Said Muhammad and also appeared as his own witness. Mira Khan one of the defendant-vendees appeared for the vendees and relied on the statement of Ghulam Muhammad Lambardar. The learned Civil Judge on consideration of the evidence of the parties decreed the plaintiffs suit vide his judgment and order dated 15-8-1984 on payment of Rs. 1,51,140. The defendants' appeal was dismissed by the learned District Judge, Peshawar Camp Charsadda on 13-7-1986.
In Suit No.445 of 1982, Mufti Ghazi Khan pre-empted sale of land measuring 100 Kanals 2 Marlas out of total land measuring 200 Kanals 4 Marlas detailed m the plaint situated in Mauza Mufti Abad, Tehsil Charsadda sold in favour of Mst. Amina Sultana and 5 others petitioners in C.R. No.453 of 1986. This sale took place through Mutation No.507 for an ostensible sum of Rs.2,70,000 attested on 4-7-1981. It was alleged in the plaint that the sale took place for a total sum of Rs.50,000 but in order to defeat the superior right of pre--emption of the Plaintiff excessive sale consideration was fictitiously shown in the mutation. Right of pre-emption was based on co-sharership, contiguity, participation in immunities and appendages. The defendants-vendees in their written statement resisted the plaintiff's suit on several legal and factual pleas. The plaintiffs superior right of pre- emption was denied, a sum of Rs.2,70,000 was stated to have been fixed m good faith and paid to the vendor, in addition to the District Council Fee of Rs.15,000. It was further stated that after the sale in their favour the defendants had made improvements in the suit land. The learned trial Judge framed as many as 9 issues in the case, the relevant herein being issues 5, 6, 7, and 8 pertaining to improvements, superior right of pre-emption, payment of sale consideration and market value respectively. The plaintiff in support of his case relied on the statement of Miraj Muhammad Patwari Halqa (P.W.1) and appeared as his own witness, and also relied on the statement of Mir Muhammad. Mira Khan one of the defendants vendees appeared as his own witness and relied on the statement of Ghulam Muhammad Lambardar. The learned trial Judge on consideration of the evidence of the parties decreed the plaintiff's suit on payment of Rs.7,59,386.16, the market value, assessed on the basis of the five years average of the sale transactions in the Mauza on 15-12-1984. The vendee's appeal was dismissed by the District Judge Peshawar Camp Charsadda on 14-7-1986.
2. In all these three cases excepting the difference in the sale consideration of the different sale transactions the evidence of the parties is the same and the finding of the learned trial Court is also identical. When the appeals against the said judgment and decree came for hearing before the learned District Judge he wrote a detailed judgment in Civil Appeal No.13/13 and observed that similar points are involved m the connected appeals 12/13 and 14/13 of 1985 filed by Hayat Gul son of Abdul Hakeem Khan and Mira Khan etc. Against Mufti Ghazi Khan and others for the reasons which he had recorded in his judgment in Appeal No.13/13 of 1985 the said two connected appeals were also dismissed. As the learned counsel for the petitioners have raised similar contentions in all thethree revision petitions I propose to dispose them of by this single judgment.
3. It was contended by the learned counsel for the petitioner that while resisting the plaintiff's suit for pre-emption the defendants-vendees had specifically raised the plea that the plaintiff has got no superior right of pre--emption as against the defendants-vendees and in this respect referred to the 4 statements of the parties and argued that it was established there from that the defendants- vendees were in cultivating possession of the suit land as tenants before the impugned sale made in their favour. It was further contended that the defendants' allegations that they had made improvement over the suit-land after its purchase was reflected in an issue and apart from the defendant-vendees' own evidence there was an admission by the plaintiff that the defendants- vendees did make improvement over the suit-land by raising construction over it for their residence but the learned trial Court failed to assess such improvements in accordance with law by appointing a commission. It was pointed out that even before the sale made in favour of the defendants-vendees there was some construction in the suit-land prior to its sale. The market value assessed on the basis of five years average was also challenged to be passed on misreading and non-reading of material evidence. Lastly, the learned counsel criticised the judgments of both the Courts below these being against the provisions of Order XX, Rule 4 and Order XLI, Rule 31 of Code of Civil Procedure respectively as neither the evidence has been discussed nor the questions raised have been judicially determined. The learned counsel for the respondents in support of the judgment and order of the Courts below raised an objection to the maintainability of the revision petitions. It was argued that the questions pertaining to improvements, superior right of pre-emption, payment of sale consideration and determination of market value are pure questions of fact which stood concluded by the concurrent findings of both the Courts below hence the same are immune from interference in exercise of revisional jurisdiction. It was further argued that it was not the case of the defendants-vendees in their pleadings that they had got first right of pre-emption, as tenant in cultivating possession of the suit-land before the sale made m their favour, hence they are not allowed to make out a new case at revisional stage. The market value determined on the basis of five years average being legal could not have been discarded by the Courts below on facts and circumstances of the case.
4. After hearing the learned counsel for the parties, going through the judgments and orders of the Courts below and perusal of the record, I am of the view that the judgments and orders of both the Courts below are not sustainable and the case needs to be remanded to the trial Court. Both the Courts below while giving their findings on the issues failed to consider the evidence of the parties.
Some of the evidence has been misread while some of it has been totally ignored. The mandatory provisions of Order XX, Rule 4 and Order XLI, Rule 31 of the Code of Civil Procedure have been violated. The improvements, admittedly made in the suit land, was neither worked out nor the same had been disallowed for reason to be recorded. No efforts were made to find out the correct market value 'of the suit-land in accordance with law. The learned District Judge while disposing of Appeal No.13/13 of 1985 dismissed the other two appeals without adverting to the facts of those cases in the light of the grounds of appeals and available evidence of the parties. Without going into the merits of the case, for the reasons stated above, it would be sufficient to mention that the material evidence in these cases consists of the statement of the Patwari, who has produced the Revenue record and the alleged 5-year average, the statement of the plaintiff and the statement of one of the vendees and his witness. The statement of Patwari pertains to the superior right of pre-emption of the plaintiff and 5-year average in support of market value of the suit land. Such being the case under Order XX, Rule 4 of the Code of Civil Procedure, the judgment of the trial Court should have contained a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. Similarly under Order XLI, Rule 31 the judgment of the appellate Court should have contained the points for determination and the decision thereon and the reasons for the decision. The trial Court and the appellate Court are, therefore, duty bound to consider and discuss the evidence of both the parties satisfactorily so that it may be visible that the Courts below have applied their mind and that they have based their findings on proper appraisal of such evidence. As already stated, both the Courts below have not referred to the evidence of the parties and have disposed of the issues in a cursory manner. The learned trial Judge while giving his findings on issues Nos.7 and 8 pertaining to the payment of sale consideration entered in the mutation and the market value respectively, simply stated as follows:- "The defendants have failed to produce worth reliance evidence to the effect that the amount entered in the sale mutation has been actually paid. In these circumstances I have to follow five years average copy Ex.PW 1/3, according to which the price of the suit property is Rs.1,51,140. Similar is the observation of the learned District Judge while disposing of Appeal No.13/13 of 1985 (Mira Khan etc. v. Mufti Ghazi Khan and others). The learned District Judge while disposing of other connected appeals in the same judgment held as under:- "Similar points are involved in the connected two appeals bearing Nos. 12/13 and 14/13 of 1985 filed by Haji Hayat Gul son of Abdul Hakim Khan and Mira Khan etc. Against Mufti Ghazi Khan and others.
For the reasons which I have recorded in my instant judgment in appeal No.13/13 of 1985, the said two connected appeals are also dismissed."
5. As already pointed out the impugned sale took place in July 1981 and the plaintiff in his suit did not accept the sale consideration entered in the impugned mutations. It was, therefore, required, in the absence of legal proof of actual payment of the sale consideration, of the Court to have determined the market value of the land keeping in view the provision of Section 27 of the N.-W.F.P., Pre-emption Act 1950. The learned Trial Judge having held that the defendants --vendees failed to prove that the sale consideration entered in mutation was fixed in good faith and paid to the vendor, while determining the market value of the land, relied on 5-year average, Ex.P.W. 1/3, prepared by the Patwari. This average comprises of two mutations and for the sake of proper understanding is reproduced in extensive as follows:-- According to this average the market value of the suit- land was worked out at the rate of Rs.1,511.40 per Kanal. Of these two mutations, Mutation No.481 attested on 8-3-1978 pertains to an area measuring 8 kanals for the sum of Rs.16,400 i.e. The market value per kanal is Rs.2,050, while in the subsequent transaction which was attested on 7-8-1978 an area measuring 3 kanals 7 marlas was sold for Rs.754 according to which the market value per kanal comes to Rs.220 which is unimaginable keeping in view the nature of the land and its situation. Even otherwise, there appears to be a great difference in the valuation of the land, the subject-matter of these two transactions, which makes the average highly misleading. Apart from the above, both the Courts below have very conveniently ignored the fact visible on the face of the record that the 5-year average did not contain any mutation within the period of three years next before the impugned sales. The sales which were relied upon for determining the market value of the suit-land were attested in the year 1978. Section 27 provides that among other factors the value of similar land or property in the neighbourhood, and the value of the land or property as shown by previous sale or mortgages is to be taken into consideration while determining the market value but such sales must also correlate and to be of the period in which the impugned sale is made. The 5-year average, not the one in the present case, in the absence of any other evidence was considered as a valuable piece of evidence in determining the market value of the land but due to day-to-day upward trend of prices and rapid fluctuation in the prices of commodities, one year average is, now-a-days, considered to be the reliable piece of evidence in determining the market value. As back as in the year 1951 his Lordship Mr. Justice Mohammad Shari, the then Judge of the Peshawar High Court in Faqir Shah and others v. Khalo Shah and others (PLD 1951 Peshawar 14) observed as follows:- "There can be no doubt that five-yearly average is an important piece of evidence in pre-emption cases but in certain cases it can be extremely misleading and that in this particular case it certainly is misleading is proved by the fact that thirteen days later the land which according to the five-yearly average was worth Rs.182 and which according to the deed in question was worth Rs.400 only was as a matter of fact sold for Rs.1,000 only."
For the reasons stated above it can be safely held that there were no materials before the Court for determination of market value of the suit-land and that the average relied upon, consisting of only two mutations of sale and that too pertaining to a period mo:. Than three years before the impugned sale, was highly misleading and unreliable. 1, therefore, accept these revision petitions, set aside the judgments, decrees and orders of both the Courts below and remand these cases to the Trial Court for giving full opportunity to the parties to lead fresh j evidence in support of their case m the light of the pleadings of the parties and the observation made above and thereafter for fresh decision in accordance with law. If found necessary the Court can appoint a commission to work out the alleged improvement and also to report about the market value of the suit land in addition to any other evidence which the parties wish to produce. Parties are left to bear their own costs.