Sale of agricultural land measuring 109 kanals 12 marlas situated in village Kot . Mirza, Tehsil Shorkot made by means of a, registered deed dated 5-12-1973 for an,ostensib,le price of Rs. 26,000 in favour of the appellants, was sued out by the respondent to be pre-empted on the grout) of his being a collateral heir of the vendor Pehlwan also disputed the sale-price which he claimed to actually be only Rs.13,000 which was urged to also be the market value of the land at the time of sale. Vendees contested the suit by denying the claim of the plaintiff and also raised the plea of estoppel. They reiterated the sale-price of Rs.26,000 to have been fixed in good faith and also paid in fact to the vendor. The parties were brought to trial on the issues relating to superiority of right of pre--emption, estoppel and the sale-price Rs.26,000 being fixed in good faith and paid in fact or else, the market value of the land. Plaintiff's relationship with the vendor was proved by means of copies of pedigree-table and Jamabandi and there was no rebuttal thereof. No evidence having been led to prove estoppel, controversy seemed to be really confined to the consideration. Trial Judge Considered the evidence led by the parties and decreed the suit in favour of the plaintiff by his judgment dated 19-12-1975 requiring him to pay before 15-1-1976 a sum of Rs 20 000 which in his view was double the five-yearly average of price of land .
Both parties felt aggrieved of such fixation of amount and the plaintiff filed and appeal to have it reduced to rs 13000 the amount paid before the sub-register and the vendees maintained cross- objections claiming to be paid Rs 26000 the matter came up for consideration before an additional district judge who came to the view that there did not exist any basis for the amount being fixed at Rs 20000 and also held the sale-price to have been proved th be only rs 13000 as was borne out by the certificate of registration appearing on the sale-deed exh.d.1 he disbelieved the genuineness of the receipt exh.d.2 for the stated reasons and also on the basis of the statement of the vendor peshlwan who had appeared as P.W2 to depose that he had sold the land for Rs 13000 and did not revived any money as advance at the time of execution of the receipt exh.d.2. In result by the judgment dated 1-3-1977 he accepted the appeal into substituting the trial courts decree with a modified on for rs 13000 payable on or before 29 of march 1977 the cross ---objection of the vendees were simultaneously dismissed.
3. In this second appeal by the vendees, controversy is limited to the amount liable to be paid by the pre-emptor for the land decreed in his favour. Learned counsel for the appellants argues that burden of proof of the relevant issue has been fully discharged by the vendee-defendants by proving that the sale--price was fixed in good faith at Rs.26,000, the actual payment whereof also stands satisfactorily proved on the record and whereas the two Courts below have not adverted their attentions at all to the first part of the composite Issue No.3 relating to the fixture in good faith of the sale-price at Rs.26,000 and have only arbitrarily refused to' accept the payment of the earnest money of Rs.13,000 evidenced by the receipt Exh.D.2; on the basis of flimsy grounds and inconsequential reasons which include the statement of the vendor Pehlwan who had appeared for his nephew, the pre-emptor, to depose to the non-payment of the amount evidenced therein to have been received from the vendees despite an admission on the point made by him before the Sub-Registrar and in reaching such a finding adverse to the vendee-defendants, the appellate Court has altogether left out of Consideration the evidence produced by the vendees with regard to fixation in good faith of the sale-price at Rs.26,000.
4. After carefully perusing the, impugned judgments, I find that the defence evidence on the point of actual payment of earnest money has been considered and rejected as being unsatisfactory but that part of the: testimony of the D.Ws. Which relates to the bargain and fixation of sale-price has been completely omitted from consideration. Issue No.3 is of composite nature whereunder vendees were required to prove either that the ostensible sale-price was fixed in good faith or that it was actually paid. These two aspects of the consideration are independent and proof of one of them obviates the necessity of proving the other. Since there is no rebuttal to the evidence of the witnesses of the vendees on the point of fixation of sale-price and they are the marginal-witnesses of the title-deed sued about, therefore, Issue No.3 deserved to be answered in favour of the vendees to the extent at least that the fixation of sale-price at Rs.26,000 has not been shown to be in bad faith. Vendor's admission in Exh.2 about the receipt of earnest money of Rs. l3,000 and his subsequent affirmation thereof before the Sub-Registrar renders his testimony unworthy of acceptance in view of his close relationship with the pre-emptor for whom he had come into the witness-box to I depose against the contents of his own documents (Exh.D.2).
5. In the above view of the matter, findings adverse to the vendee---appellants returned under Issue No.3 are not sustainable. They are accordingly set aside and the issue is answered in favour the vendees.
6. As a result, this appeal is accepted and the decree passed below, in favour of the respondent upon payment of Rs.13,000 is modified to be a decree upon payment of Rs.26,o00, as the sale-price to be deposited by the plaintiff---respondent on or before 1-4-1989 as payale to the vendee- appellants,' less 'the amount already deposited icy him as Zar-i-Panjam or in pursuance of the decree, passed below. In the event of his failure to. So make up the deposit of Rs.26,000 by the above date, the respondent's suit will stair dismissed with costs throughout' For the present, parties are left to bear their own costs hereof.th