1. ' Second appeal from the judgment and decree of learned District Judge dated 1-12-1967 passed in first appeal emerged from a civil suit for pre-emption. The trial Court decreed the pre-emption suit on 21-10-1966. Appeal filed against the decree failed with costs.
2. ' Facts which gave rise to the appeal in brief are:- Mohammad Boota owned agricultural land measuring 74 kanals 13 marlas at Chak Marda of Tehsil Wazirabad. By deed of sale registered on 1- 10-1964, he sold above land to Murad Ali and his brother Rehmat Ali of Chak Sanatta in Tehsil Wazirabad for a consideration of Rs,25,000. Out of total consideration, Rs,19,000 were paid to the vendor at the time of registration of the sale-deed, and, the balance was retained for redeeming the mortgage in the sum of Rs,6,000 existing in favour of Manzoor Hussain respondent to the appeal and plaintiff in the pre-emption suit.
3. ' Manzoor Hussain claimed pre-emption in respect of the above sale. He asserted his preferential right of pre-emption as a co-owner in the joint Khata, and, owner of the revenue estate. According to him, vendees were total strangers. Price paid for the land was also disputed, and, it was averred that land was sold for Rs,8,000 and after deducting the mortgage money, only a sum of Rs,2,000 was paid to the vendor and the rest was a mere show of payment before the Sub-Registrar merely to ward off his pre-emption.
4. ' Defendants contested the suit. It was stated by them that they had purchased the land for sale price of Rs,25,000 and out of that consideration, Rs,19,000 were paid in presence of the Sub- Registrar and remaining Rs,6,000 were the mortgage money payable to the mortgagee of the land for its redemption. They also claimed a further sum of Rs,1,000 as miscellaneous expenses in connection with completion of the sale and registration of the sale- deed. They also denied plaintiffs superior right of pre-emption, and, put him to its proof, and, further pleaded waiver and estoppel.
5. ' On 16-7-1965, the trial Court settled necessary issues in the suit. Thereafter, it took evidence from the parties, and, upon its review, gave decree for the land in suit to the pre-emptor subject to his paying Rs,8,991.30 to the vendees as price of the land before a specified date in the decree-sheet.
6. However, the trial Court denied miscellaneous expenses to the vendees incurred by them on the sale. In appeal, learned District Judge maintained the judgment, and decree passed by the trial Court. Aggrieved of the judgment in appeal, vendees preferred second appeal to this Court. It was admitted to hearing on 20-1-1969.
7. ' Sole material point surviving for decision in the appeal is about the price payable for the land.
8. Neither the right to pre-empt the sale is denied nor that the pre-emptor had not waived it. Sale was evidenced by a registered deed. Original sale-deed is marked Ext.D1 in evidence. In the body of the sale deed, there is a recital about fixation of the sale price at Rs,25,000 and payment of Rs,19,000 by the vendees to the vendor in presence of the Sub-Registrar. Endorsement on the back of the sale deed by the Sub-Registrar also supported the payment of above said amount in that manner. Rasool Bakhsh Lambardar of Chak Mahi, Riasat Ali of Chak Sanatta, and, Sardar Khan, Member Union Council are witnesses to execution of sale-deed Ext. D1, payment of Rs,19,000 before the Sub-Registrar and identification of the parties to the sale at the time of registration of the sale- deed. PW.1 is Mohammad Hussain, Patwari Halqa Mardake. He prepared quinquennial averages of sales taking place in Chak Marda Ext.P2 which showed Rs,736 per acre as the market value of the land. The document is not of much help because its result is based on two sale transactions only embodied in mutation No,123 dated 14-3-1954 and mutation No,127 of 16-6-1955. Further, in absence of any indication of kind of land involved in the transactions noted in Ext.P2 and whether the land covered was similar to the land sought to be preempted both locality or areawise, result in it could not be safely applied to determine the true market value of the land in question. Similarly, Exts. P3 and P4, the sale-deeds in favour of the pre-emptor from the joint Khata in 1953 and 1954 may not furnish any clue to the true market value of the land in question. Statement of sale averages in Ext.CW-1/1 from village Budha Rajada stated to be a neighbouring estate in absence of other relevant particulars could also not be taken as a true index of the market value of the land in question prevailing at the time of its sale. Additionally, result in Ext.CW-1/1 is based on four transactions of sales only which took place between 1961 and 1962. As for Ext.CW-1/2, statement of sale averages from Kot Khizri also a neighbouring estate, it showed the price per acre of the land at Rs,1,732.80. According to this document, market value of the land roughly came to be about Rs,16,000. In Chak Marda, wherein the land in dispute is situated as also village Budha Rajada, there has not been much sale activity of the lands as is clearly indicated by the few transactions noted in the sale averages from those villages. As for Kot Khizri, it shows a better picture. Therefore, the result arrived at in the sale averages of that village may be taken as some indication about market value of the land in question. Learned Judges below do not seem to have adverted to Ext. CW-1/2 at all.
9. Rather, they confined their attention to other sale averages to which reference has already been made above. Apart from the evidence noted above, there is no other reliable material to assist decision of market value of the land in question. As for the price actually paid, Murad vendee as DW.1 stated that Rs,19,000 were paid to the vendor in presence of identifying marginal witnesses of Ext.D1 before the Sub-Registrar and Rs,6,000 were retained for redemption of the mortgage already existing in favour of respondent/pre-emptor. He also gave evidence about the expenditure of Rs,1,250 incurred on the completion of the sale and registration of the sale-deed. This included value of stamp papers on which the sale-deed was written. No suggestion, whatsoever, was given to him that any part of the sale consideration was returned by vendor after the completion of sale and registration of the sale deed. PW.2 Rasool Bakhsh who is a marginal witness of Ext.1 gave evidence that Murad vendee had informed him that he had entered into sale transaction with Boota for a sum of Rs,8000 but the sale price of Rs,25,000 was intended to be inserted in the sale- deed for mere showing. Further deposed that he had requested him to bring Rs,17,000 with him for making it a meaningful show of payment before the Sub-Registrar. He also deposed that vendees had brought Rs,2,000 with them and had taken the remaining amount from him and had then made a show of payment of Rs,19,000 before the Sub-Registrar. Thereafter, so the witness deposed, Murad Ali took back Rs,17,000 from Boota, and, returned that amount to the witness. Riasat Ali and Sardar Khan P.Ws 3 and 4 also deposed that Rs,17,000 were returned to Rasool Bakhsh PW.2. The question would be whether the evidence of these witnesses to establish return of a substantial portion of sale consideration after its actual payment to Boota was reliable and convincing and could be safely believed. In my opinion, on records, there are strong indications to doubt their testimony on the point of return of the sale consideration. Plaintiff and P.Ws 2 to 4 are knitted together in a common brotherhood of Cheemas. Riasat Ali was member of Union Council of which plaintiff was a sitting Chairman. Rasool Bakhsh, though of a different village but was closely related to Riasat Ali. His village fell in the Union Council headed by the plaintiff as Chairman. None from P.Ws 2 to 4 are shown to have informed the plaintiff about return of the sale price of Rs,17,000.
10. Plaintiff himself deposed that he had that information about the return of sale price two months after the sale. Despite that no plea about return of the sale price was taken in the plaint. There is no plausible explanation for this important omission. If the version about return of a substantial portion of sale price was true, the plaintiff was obliged to make an averment to that effect in his pleading to enable the vendees-defendants to meet it squarely. Entire evidence about return of Rs,17,000 came after the defendants' evidence was over leaving no chance for them to explain.
11. Record reveals that the plaintiff is a person of some influence in the area. He was Chairman of Union Council. Vendees were strangers to Chak Marda. Marginal witnesses seem to have obliged him by making statements favourable to his stance. In the list of witnesses submitted by the parties, Rasool Bakhsh Lambardar, and, Sardar Khan are their common witnesses. Some effort made by the vendees to secure attendance of the marginal witnesses to Ext.D1 for proving payment of sale price having failed, they chose to appear for the plaintiff and gave evidence in his favour. This way, the evidence led by the plaintiff sprang a clear surprise upon the vendees without giving them any chance to offer their defence. It is no doubt true that onus about fixation of the sale price and its payment lay on the vendees. His statement on oath in the light of endorsement of the Sub-Registrar carried weight when the plaintiff's evidence about return of Rs,17,000 from the sale price is found doubtful. With passage of time and change of events, influence may have prevailed for a favourable change in the attitudes of P.Ws 2 to 4, thus leaving the poor vendees in a state of lurch. Record strongly supports this inference. Jamabandi pertaining to the land in dispute for the year 1963-64 Ext. P1 shows that the land in suit is cultivable. Its classification is recorded as Chahi Pump. Obviously, it must be valuable. Learned counsel for the appellant submitted that its present day market value was not less than a lac of rupees per acre. That statement may not be of much assistance because the market value of the land at the time of sale had to be taken but it could certainly assist in adjustment of equities. My own reading of record sufficiently convinces me that out of the sale price fixed for the land, a sum of Rs,19,000 was really paid by the vendees to the vendor and no part of it was returned by the vendor to be passed on to Rasool Bakhsh P'W.2. Market value of the land as indicated by sale averages from Kot Khizri strongly supported the fixation of the stated sale price and its consequent payment to vendor. Accordingly, I would, in disagreement with the Courts below hold that the stated consideration in the sale-deed was fixed in good faith and out of it Rs,19,000 were paid to the vendor. Market value of the land also supports that conclusion. Furthermore, vendees claimed Rs,1,000 as expenses on the sale of the land in their favour. Out of the sum so claimed, Rs,750 were spent on purchase of stamp papers, Rs,250 as fees to the Union Council, Rs,125 as registration charges and Rs,150 for writing of the sale-deed etc. It was not disputed that the vendees had paid for the purchase of stamps and paid the fees to the Union Council also. Therefore, they are clearly entitled to the re-imbursement of the amount spent by them in connection with the sale of the land and registration of the sale-deed. Learned Judges below were erroneous in denying that relief to the vendee-appellants. In absence of any express term in the contract, the buyer has to pay the cost of the stamps. Section 29 (c) of Stamp Act, 1899 read with section 55 (1) (d) of Transfer of Property Act provides that in absence of an agreement, it is the duty of the buyer to prepare a stamped conveyance, tender it to the seller for execution and registration. This view is supported from the judgments in Collector, Ahmednagar v. Rambhau Tukaram Nirhali AIR 1930 Bom. 392, Madho Rao versus Patelba and others AIR 1953 Hyd.
225. Therefore, expenses incurred by the vendees as a part of the bargain of sale could be claimed by them.
12. In view of the above, appeal is allowed, impugned judgments and decrees are modified, and, pre- emption suit is decreed in favour of the respondent, ' subject to his depositing Rs,20,000 (minus already paid/deposited), in Court by or before 6-1-1991.
13. In default, pre-emption suit shall be deemed to have been dismissed with costs. As for the costs in this Court, parties shall bear them.
14. Original records be returned.