MUNIR A. SHEIKH, J.- In this second appeal Med by the vendees concurrent findings of the two Courts below that the sale price of the land was Rs.2,000/- subject to payment of which the wpshdewis were to pre-empt the same have been assailed.
2. Learned counsel for the appefiaats argued that in the sale deed the price of the land was mentioned as Rs.5,000/- the correctness of which had been disputed, therefore, the trial Court was bond to determine dm market price of the suae if it was found that the said amonW as price was not mentioned the sale deed in good faith or actually paid. He tefied upon Section 25(1) of the Punjab ''Pre-emption Act which reads as under- "Sec.25(l)
Fixing of price for purposes of suit in case of sale.
If in the case of a sale the parties are not agreed as to the price as which the pre-emptor shall exercise his right of pre-emption, the Court shall determine whether the price at which the sale purports to have taken place has been fixed in good faith or paid, and if it finds that the price was not so fixed or paid^t shall fix at the price for the purposes of the suit, the market value of land or property."
The trial Court held that according to evidence produced on the record the sale was made for an amount of Rs.2,000/- which was actually paid and the suit was decreed subject to payment of the said amount. This finding has been upheld by the lower appellate Court.
3. The argument of learned counsel for the appellants that in such a case the Court was bound to determine the market price and on that basis the sale price was to be fixed to pre-empt the sale in my view has no merits. It is true that in the sale deed the sale price was mentioned as Rs.5,000/- on which an issue was framed. Since the onus erf the relevant issue was on the appellants, therefore, it was for them to prove that the sale was in fi ct made for Rs.5,000/- He examined Muhammad Bashir s/o Ghulam Mohi-ud-Din as DW.I who did not state anything about the amount of consideration in his examination-in-chief. However, in the cross-examination he stated that an amount of Rs.5,000/- was paid as earnest money at the the of settlement of the bargain about which a receipt was also executed on which he was one of the witnesses. No such receipt was produced in the evidence. According to the evidence of this witness the total amount of consideration had been paid as earnest money which was evidenced by a receipt as such his evidence is not worthy of any credence. Allah Ditta was examined as DW.2 who though stated that the rate of land over which construction had been raised was Rs.400/500 per maria. The land under neath the house in dispute is 10 marlas. He stated that it was sold for an amount erf Rs.5,000/- but in the cross- examination admitted that the bargain was not settled in his presence and he was told about the same by the present appellants. He also admitted that he did not go to Kharian in respect of this bargain therefore, his evidence is hearsay. Muhammad Asghar one of the defendants/vendees appeared as DW3. He in his examination-in-chief stated that the sale price of the house was Rs.4500/- but did not state that out of the said amount an amount of Rs.2,000/- was paid as earnest money. In the cross-examination when asked he, however, denied that the total sale {nice was Rs.2,000/- and stated that he had already received Rx_MW0/- as earnest money before the execution of sale deed at his house. He, however, admitted that the bargain of sale was oral and at the the of settlement of the same no amount was paid as earnest money. He stated that DW.I mid DW3 were present at the the of settlement of the bargain. He contradicted DW3 who stated that the bargain did not take {dace in his presence and he was tuht by DW3 about it.
4. It is dear from this evidence that the payment of Rs.3,000/- as earnest money before registration of sale deed and the rerital made in the sale deed about the same were not proved as correct and the said plea was a false plea. An amount of Rs.2,000/- was paid before the Sub Registrar, therefore, it was rightly held that the sale in fact was made for an amount of Rs.2,000/-. In such a case where the Court comes to the condusion that the sale in fact was made for a specific amount and the same was paid, it was not necessary to go into the question of market price. The question of determination of market price could arise only in that case where there was an admission about the fixation of amount mentioned in the sale deed as consideration but it was alleged that the same had not been fixed in good faith and paid and not where it was alleged that the amount of consideration in fact paid was different from the one mentioned in the sale deed. Where the Court was in a position from the evidence on record to determine that the sale in fact was made for an ascertained amount which was in fact paid the suit could be decreed on the payment of the said amount.
5. Apart from this though there is evidence of DW.2 about the market price of land being Rs.400/500 per maria for constructed area but the evidence of the appellant if considered as a whole does not inspire confidence to hold that he has even otherwise succeeded in establishing that the market price of the land was Rs.5,000/-. Muhammad Asghar DW. Did not state anything in his evidence about the market price of the land. The evidence of DW.2 could at the most be considered as corroborative, to the evidence of DW.3 one of the defendants who as observed above did not state anything about the market price of the land. Likewise DW.I also did not in his evidence state anything about the market price. On the other hand Muhammad Akram plaintiff when appeared as PW.3 stated that the market price of the land was Rs.50/55 per maria. One of the defendants who appeared as DW.3 having not stated anything about the market price, therefore, the evidence of Muhammad Akram plaintiff could be relied upon to hold that the market price of the house sold was Rs.2,000/-which in fact was paid.
6. The findings recorded by both the Courts below in view of the above discussion do not suffer from any illegality, as such, the appeal has no force which is accordingly dismissed with no order as to costs.