The dispute relates to agricultural land measuring 55 Kanals 1 Maria situated in village Samurana Tehsil and District Multan. The said land was purchased by the appellant through a registered sale deed dated 1-3-1967 for consideration of Rs. 52,000.00, paid before the Sub-Registrar, Multan. The sale transaction was pre-empted by the respondent who inter alia alleged that the price actually paid was Rs. 26,000.00 and it was fixed at Rs. 52,000.00 in order to defeat the right of pre-emption.
As many as 9 issues were framed by the learned trial Court on the basis of the pleadings of the parties. The suit of the plaintiff-respondent was , decreed holding the sale price as well as the market price of the suit land being Rs 52,000.00. The plaintiff-respondent being dissatisfied with the judgment and decree of the learned trial Court with regard to issues Nos. 5 and 6 holding the sale price to be Its. 52,000 00, challenged the same before the learned lower appellate Court which was decided by the impugned judgment by the learned Additional District Judge, Multan, on 16th of October 1972. Appeal of the respondent was accepted and it was held that the actual price which was paid by the appellant to the vendor was Rs. 26,000.00 and not Rs. 52,000.00. The defendant- appellant has now come up to the High Court and has challenged the validity of the impugned judgment on issues Nos. 5 and 6 which are relevant for decision by this appeal.
2. It has been argued on behalf of the appellant that in view of the endorsement of the Sub- Registrar, on the back of the sale deed, to the effect that Rs. 52,000.00 were paid as sale price in his presence, the said amount should be deemed to have been paid in good faith as market-price.
Reliance in this respect has been placed upon .Madan Gopal and for others v. Maran Bepari and 3 others (PLD 1969 SC 617), Muhammad Jaffar Ali and others v. Muhammad Abdul Majid and another (PLD 1968 Dacca 201) and Nainsukhdas Sheonarayan v. Gowardhandas Bindrabandas (A I R 1949 Nag. 110It is also contended that the findings of the learned lower appellate Court mainly based upon the statement of p. W. 1, Mohammad Amin, scribe, are unwarranted as the said evidence cannot be relied upon in the circumstances of the case. It is further contended that it has been amply proved on record by the statements of marginal witnessess such as D. W. 1 to D. W. 3 that the amount of Rs. 52,000.00 was paid as price of the land in question before the Sub-Registrar.
2. The case of the respondent has been that at the time when the sale deed was executed it was agreed between the vendor and the vendee that the sale price would be shown therein as Rs.
52,000.00 instead of Rs. 26,000.00 in order to avoid preemption P. W. 1, Mohammad Amin who is scribe of the sale deed in question while appearing on behalf of the respondent has stated that after the registration of the sale deed both the parties, vendor and the vendee came to his shop in order to collect their luggage and it was there that the vendor had returned the amount of Rs.
26,000.00 out of Rs. 52,000.00 to the vendee/appellant. It has been argued that since the factum of return of half of the sale amount has not been mentioned by the respondent in his plaint or even in his statement, therefore the same being an afterthought cannot be given any weight this aspect of the case has also been adverted to by the learned trial Court aria while relying upon the fact that since the return of the above-mentioned amount in the manner as stated by P. W. 1, Mohammad Amin, has not been mentioned by the plaintiff -respondent himself, in his statement, therefore, the statement of P. W. 1, Monammad Amin cannot be relied upon.
3. So far as the endorsement of the Sub-Registrar on the back of the sale deed is concerned, the presumption of truth is attached thereto but the same is rebuttable. Even in the presence of such endorsement it is always open to a pre-emptor to show that the sale price as entered in the endorsement is not the genuine actual sale price. If he proves to the satisfaction of the Court that market value of such property is much less than the price entered in the sale deed then onus will shift to the vendee to show as to why he paid so much amount in excess of the market price teeing the actual price It is possible that fictitious amount of price may tie shown in the ' sale deed by the parties concerned and the same may also be paid before the registrar but if it is otherwise found to be fictitious one that does not mean that such entry in the sale deed or endorsement of the Registrar to that effect is sufficient to constitute payment of price for .The purpose of Pre--emption Act. In such a case genuine payment is to be ascertained which can be determined only by taking all the relevant circumstances into consideration. It is proved that the price actually paid is less than the price, entered ire the sale deed then the price so entered cannot be deemed to have been fixed in good faith. The price actually paid is the best evidence of the market value of a property at the time of its sale. Reliance in this respect can be placed upon khadim Hussain and others v.
Gulab and another PLD 1954 Lah. 471) and Gulab and others v. Ram Singh (1890 P R 304
4. In the present case the plaintiff-respondent produced P. W. 3, Mohammad Shafi Patwari to prove the quinquennial average Exh. P. 5, according to which the market value of the suit land comes to about Rs. 26,000.00. Fard Darja Bandi Exh. P. 3 has also been brought on record by the plaintiff through P. W. 12, Haji Ghulam Ahmad whereby the suit land is proved to be second class land.
Further for the determination of the market value of the property, copies of mutation such as Exhs.
P. 9, P. 10 and P. I1 as well as copies of the judgment of the learned trial Court as well as of the lower appellate Court Exhs. P. 23 and P. 6 respectively 'have also been placed on record. All such documents show the market value of the property to be about Rs. 26,000.60. It may be mentioned that mutations as well as copies of the judgment, as referred to above relate to the sale transaction with regard to the same square of land which is subject-matter of the present appeal.
On the contrary the appellant has relied upon mutations of land Exits. D,. 3, D. 12 and D. 10 in order to show that price of the land in question being Ra. 52,000.00 was rightly paid. The said mutations of sale are in relation to different squares of land though in the same village. The other mutations of sale relied upon by the appellant relate to open plots of land meant for residential purpose. Since the land in question is agricultural, therefore, the same cannot be taken into considera--tion.
Moreover some of them relate to the period 1962-1963 while the present transaction took place in 1967. In this, view of the matter the learned lower appellate Court has rightly held the market value of the land at the time of its sale to be Ks. 26,000.00.
5. The learned lower appellate Court while deciding issue No. 5 has relied upon certain factors such as that vendor was not produced by the appellant in order to show that actual sale price paid in good faith was Rs. 52,000.00 and further the vendee (appellant) did not appear himself in the witness-box and was represented through his attorney who had not appeared before the sub- registrar at the time of registration of the document of sale. It has also been observed that Faiz Bakhsh who is stated to be present by D. W. 7 attorney of the appellant, at the time when the sale transaction was agreed upon between the vendor and the vendee, was not produced. Accord-- ing to the lower appellate Court evidence of the vendor and Faiz Bakhsh was necessary to rebut the statement of Mohammad Amin P. W. 1, the scribe. In the absence thereof the onus for proving the actual price paid has not been properly discharged by the appellant. The arguments given by the learned lower appellate Court for deciding the case against the appellant have force but even if we ignore the statement of P. W. 1 the question arises as to how to find out the actual price paid in good faith. If the pre-emptor has brought on record sufficient evidence to show that market price of the property at the time of its sale was less than toe price alleged to have been paid then irrespective of any evidence on record showing particular price alleged to have been paid according to the sale-- deed as well as the endorsement of the Sub-Registrar, it is the duty of the Court to find out as to what is the genuine and actual price. The argument of the learned counsel for the appellant that since the allegation that half of the price as shown in the sale deed was returned to the vendee after the registration of the document was not made in the plaint, therefore, the same cannot be considered, has no force in law as well as circumstances of the case. I am of the view that irrespective of any such allegation having been made or not it is the duty of the Court to find out the actual and genuine price of a property, when its market price at the time of its sale has been proved to be otherwise. Since satisfactory evidence as discussed above, has been brought on record by the respondent that market value of the property at the time of its sale was about Rs. 26,000.00, therefore, the learned lower appellate Court has rightly held that amount of Rs.
52,000.00 was not actually paid as price of the property in question.
6. There is yet another aspect of the ease which goes against the appellant. It is possible that if evidence produced by the parties on issue No. 5 is reappraised by this Court then different conclusion may be arrived at but it is not possible in law. The learned lower appellate Court being fully alive to the issue in question, has discussed the merits and demerits of the evidence produced by the parties. He has given reasons for concluding against the appellant and such conclusion can be arrived at by any reasonable person which amounts to a finding of fact and cannot be interfered with in the present proceedings.
7. For the aforesaid reasons, there is no force in the appeal which is hereby dismissed. There will however, be no order as to costs. The respondent will now deposit the pre-emption amount less than amount already deposited by him by 4th of March 1976 failing which his suit will stand dismissed, revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.