' Brief' facts of the case are that on 17-12-1980 by way of a mutation No,329, Sibt-e-Abid sold 245 Kanals of land for a consideration of Rs,1,50,000 to the respondents/defendants. The petitioner/plaintiff being a tenant over Khasra Nos.4307 and 4310 measuring 124 Kanals preferred a suit on the basis of his superior right of tenancy. The suit was decreed in his favour for consideration of Rs,87,175 by the AC/Collector on 24-1-1985. The petitioner went in appeal before the Additional Commissioner with the prayer that decretal amount was much higher than the market price, but his appeal was dismissed on 9-4-1985. However, while deciding issue No,8 the Additional Commissioner instead of mentioning lump sum amount to be paid by the preemptor had bifurcated the consideration and other expenses incurred in the execution of sale. The petitioner then filed revision petition before the Board of Revenue. The Member (Revenue) dismissed it on 29-4-1985 on the ground that Additional Commissioner had already reduced the price of the suit land from Rs,87,175 to Rs,75,918. Thereupon the petitioner invoked the writ jurisdiction of Lahore High Court wherefrom the case was remanded to the Board of Revenue on the request of the learned counsel for the parties, for fresh decision.
2. On remand, the learned counsel for parties were heard and the revision petition of the petitioner was partly accepted. That order was assailed in Writ Petition by the respondents and vide order dated 14-5-1990 the Lahore High Court again remanded the case for fresh decision.
3. The relevant terms of the remand order are reproduced as below:- "It is, therefore, directed that the Member, Board of Revenue while working out the pre-emption money would keep out of consideration the legal presumption of truth which does not stand attracted to the facts of this case but will decide the matter on the quality of evidence adduced by the parties and brought on the record."
4. The learned counsel for the petitioner were requested to file written arguments due to the inability of one of the other learned counsel to be present in the Court on various dates of hearing.
5. The learned counsel for the petitioner contended that the petitioner/plaintiff produced two witnesses i,e. P.W.1 and PW-2 besides a registered sale-deed Exh.P.6 and decree of the Civil Court Exh.P.7 in support of his contention that the price of land was Rs,80 per Kanal. The land mentioned in Exh.P.6 was sold about six months before the sale of disputed land, and the 'price of land could not have appreciated so much after such a short period. The land of document Exh.P.6 is adjacent to the land in dispute, (Khasra Nos.1813 and 1814 respectively). Some part of the disputed land also belongs to the same Khatauni i,e.
2656. The decree of the Civil Court Exh.P.7 further supports the contention of the petitioner that the value of the land was not more than Rs,100 per Kanal. On the other hand the sale witness produced by the respondent Mohammad Yousaf D.W. 1 said that the sale price Rs,1,50,000 was paid to the vendor in the presence of Naib-Tehsildar. However, the order on the mutation does not show that the sale price was paid in his presence. The quality and the productiveness of land mentioned in Exhs. D.1, 2 and 7 have also not been established and therefore these mutations could not be relied upon as held in Akbar Badshah v. Raza Muhammad 1986 CLC 2258. The learned counsel further maintained that the respondents have been unable to prove that the market value of the land was more than Rs,500 per Kanal at the time of sale, whereas the petitioner has proved that the price was not more than Rs,100 per Kanal. It was prayed that the market value of the disputed land may be fixed at the rate of Rs,100 per Kanal.
6. The learned counsel for the respondents maintained in rebuttal that presently the value of 124 Kanals is more than Rs,3,00,000. Thus no injustice has been caused to the pre-emptor while decreeing the suit for the land in dispute, for Rs,75,918. The Court also while decreeing the suit had believed the oral evidence of D.W.
1. D.W. 2 and D.W.3 and therefore market value of land is not to be ascertained. D.W. 1 and D.W. 2 have stated that the land in dispute is quite near to the road in their examination-in-chief. This part of assertion was not brought to challenge in the cross-examination. They have further stated that the land was of superior classification and the statements on oath of both these witnesses were examined by the Courts below. The original preemptor or his legal heirs have not deposited the decretal amount so far, and therefore, in the absence of any stay order the suit deserves to be dismissed on this short ground only.
7. I have considered the arguments, perused the case record and also the record of the trial Court.
The petitioner/plaintiff had produced two witnesses i,e. Fida Hussain P.W. 1 and Rahim Bakhsh P.W. 2 both of whom stated that the suit land was of average quality and the price was Rs,80 per Kanal. In the course of cross-examination P.W. 1 stated that he was generally a party to such sales and he was present in the office of the Patwari on the date of sale as he had some work there. He also stated that in the suit land `gowara' and watermelon are cultivated. However, he was unable to name the Khasra Number. P.W. 2 in the cross-examination was also unable to name either the Khasra Number of the land sold or the total land owned by the seller i,e. The vendor. He was also present in the office of Patwari for some unspecified reason. Both the P.Ws. 1 and 2 have not been able to specify the date of sale. P.W. 1 said that the transaction was made in the twelfth month of the year and it was summer. P.W. 1 on the other hand stated that the season was of neither cold nor hot. Their statements are inconsistent and even contradictory because December is not a summer season. It is winter. Both of them have not been able to explain the time and date of their presence or the work with the Patwari. They just happen to be chance witnesses. P.W.3 Allah Diwaya is one of the plaintiffs who stated that he was not present at the time of sale.
8. The documentary evidence relevant for the purpose of determination of the price of the land is Exh.P-6 the registered sale-deed in which 500 Kanals of land was sold for Rs,50,000 by Saghir Abid son of Muhammad Zaki to his real brother Sibte Abid s/o Muhammad Zaki on 30-6-1980. Exh.P-7 decree of Civil Court, dated 15-2-1978 is awarding pre-emption suit in respect of 81 Kanals of land in Khasra No,9173 for Rs,4,890.
9. D.W. 1 stated that he was present in the sale of suit land which was sold for Rs, 1,50,000; the suit land was of good quality and was situated very near to the road. The deed was negotiated and finalized in winter season in Bhakkar in the shop of Sibte Abid. He said that gram, wheat, gowara and water-melon were cultivated in this land. However, he was unable to specify the area in which these crops were cutlivated. D.W.2 one of the respondents/defendants stated that he had purchased the suit land for Rs,1,50,000 which was situated very near to the road and further that the sale-deed was concluded in Bhakkar. Exh.D. 1 is a mutation regarding the suit land dated 17-12- 1980 in which the value of the land has been mentioned in column 12 as Rs, 1,50,000. This price is further mentioned in the order of the Revenue Officer. Exh.D.2 is a mutation of 200 Kanals of land sold by Ghulam Haider s/o Behara to Muhammad Ramzan s/o Jhandu on 19-2-1981 for a consideration of Rs,1,60,000 i,e. At the rate of Rs,800 per Kanal. Exhs.D.3 and D.4 are copies of Khasra Girdawari. Exh.D.5 is a challan regarding the mutation fee of Rs,7,507 and Exh.D 6 of District Council fee Rs,3,750 whereas Exh.D.7 is sale of 94 Kanals of land for Rs,95,000 vide Mutation No,560 dated 19-3-1983 i,e. At the rate of Rs,1,000 per Kanal. The Collector had decided issue No,7 in favour of the defendants taking Exhs. D-2 and D.7 into consideration.
10. The foregoing analysis of the evidence shows that the plaintiff's witnesses were chance witnesses. There are material contradictions in their statements regarding time of the sale and the season. They have also not been able to explain their presence' in the office of Patwari and date of sale. It is common knowledge that parties to sale of land try to keep the transaction as confidential as possible for several reasons and a Patwari's office is the least likely place for negotiating such a transaction in the presence of several persons. Their contradictory statements therefore cannot be relied upon as far as issue No,7 is concerned. As regards documentary evidence produced by the plaintiff it shows, that Saghir Abid had sold 500 Kanals of land to his brother Sibte Abid. The transaction was between two brotheRs, It is also common knowledge that price is often deliberately understated in registered Sale-deed to avoid stamp duty etc. And in any case a sale between two brothers cannot form the basis for determining the market value of land in the revenue estate without going into the methodology context and for occasion of such sale.
11. Similarly the decree Exh.P.7 relates to the land sold in the year 1978 and cannot be taken into consideration for the purpose of the present transaction which took place nearly three years later in the end of 1980.
12. On the other hand the evidence led by defendants/respondents is consistent and more solid. It shows that the suit land is situated quite close to the road--a fact which would explain the high price of this land as compared to Khasra No,1413. The price of land situated on the metalled road can, because of its commercial potential, be much more than the price of the land say situated at a distance of one furlong from the land even if the quality of land situated on the road is inferior to the land in the rear. In the present case the quality of the land has been described by P.Ws. As average while on the other hand D.W. 1 has described it as good quality land. The Exhibits produced by the plaintiff himself i,e. P.1, P.3, P.4 and P.5 etc. Show that this land was being cultivated for gowara as well as {{URDU TEXT}} 6.466. As stated by P.W. 1 water-melons were also cultivated in this land which can be cultivated in land of good quality which is further confirmed by Exhs.D.3 and D.4. Therefore, the quality of land is not in any serious dispute. The petitioner has been unable to rebut the evidence of the respondents/defendants that the land was situated quite near to the road and hence its higher-price. Exhs.D.5 and D.6 show the mutation and District Council fees paid respectively for the land in dipute which has been correctly calculated at the prescribed rates, according to the stated price of Rs,1,50,000. Exh.D.2 relates to the sale of 200 Kanals of land on 19-2- 1981 i,e. About two months after the land in dispute was sold. The rate works out to be Rs, 800 per Kanal and is quite relevant for deciding issue No,7. However, Exh.D.7 pertains , to sale of 94 Kanals of land for a consideration of Rs,95,000 which is later in time and cannot be relied upon vis-a-vis the sale under discussion.
13. In view of the evidence led by the defendants the price of land in dispute i,e. Rs,1,50,000 paid by the respondents/defendants is proved. Issue No,7 was, therefore, correctly decided by the AC/ Collector in favour of the respondents/defendants although on different grounds.
14. However, I direct that the amount of R s 11,267 paid by the respondents/defendants cannot be included in the decree and transferred to the pre-emptor. As held by my learned predecessor in his order dated 18-10-1989, the pre-emptor is liable to pay his proportionate share out of the total amount incurred on mutation and District Council charges.
15. The upshot of the above discussion is that the revision petition succeeds to the extent of proportionate share of mutation and District Council fees only but not as far as the sale price of the land is concerned. The. AC/Collector' is, therefore, directed to modify the decree accordingly. The petitioner is given one month's time to deposit the decretal amount excluding the amount already deposited by him. The revision petition is disposed of in the above terms.