1. SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment and decree of the High Court dated 19-1-1998, whereby the appeal filed by the appellant, herein, was dismissed.
2. 2.The brief facts giving rise to the present appeal are that the plaintiff-appellant filed a declaratory suit in the Court of Sub-Judge and also sought the possession on the basis of title, in alternative, he pleaded that he was entitled to the decree on the basis of right of prior purchase against respondent No,
1. After the trial, the suit was dismissed so far as the same pertained to decree on the basis of title but a decree for possession on the ground of right of prior purchase was passed in favour of the plaintiff-appellant on payment of Rs, 1, 00,000 as consideration of sale-deed plus Rs,17,00,000 for the improvements made by the respondent in form of a house constructed over the suit land. Two cross-appeals were filed against the judgment and decree of the trial Court before the District Judge but both were dismissed. Thereafter, the appellant herein filed an appeal before the High Court contending that the costs of improvement to the tune of Rs, 17, 00,000 were not justified and, in any case, the costs of the improvement were not more than Rs,3,50,000. However, during the course of arguments before the High Court, it was contended that the respondent- vendee was not entitled to the costs of improvement at all, because during the previous litigation between the appellants, herein, and respondent No,1, temporary injunction in favour of the plaintiff was confirmed by the District Judge in terms that in case of decree on the basis of pre-emption in favour of Mst. Alam Bibi, respondent, Ali Shan, respondent, shall be entitled to take away the debris of the house and would not claim any compensation for the house over the suit land. The High Court repelled the contention of the appellant on the ground that as no such stand was taken by the plaintiff-appellant before the District Judge, he was not legally entitled to raise the point in second appeal. So far as the amount of the costs of improvement was concerned, the High Court expressed the view that the same was rightly assessed in view of the evidence on the record.
3. 3.We have heard the arguments advanced by the learned counsel for the parties and perused the record. Before dealing with the contention advanced at the Bar, it would be expedient here to give a brief background which has resulted in the present round of litigation. Previously, the suit land was sold by Allah Ditta, appellant herein, to Ali Shan, vendee-respondent, and his brother. The sale- deed was successfully pre-empted by Mst. Alam Bibi, respondent No,3. Thereafter, the suit land was transferred by Mst. Alam Bibi through a sale-deed dated 7-6-1983 to Muhammad Zaman, respondent No,2, who, in turn, again transferred the land to Ali Shan, respondent No, 1 vide sale- deed dated 29-7-1990 for a consideration of Rs,1,00,000. This sale-deed was pre-empted by Allah Dina, appellant herein, in which a decree on the basis of right of pre-emption has been passed in his favour on payment of Rs,18,00,000 (Rs,1,00,000 price of the suit land plus Rs,17,00,000 as costs of construction of the house).
4. 4.Raja Muhammad Siddique Khan, Advocate, the learned counsel for the appellant, has argued that the Courts below have committed an error in allowing the compensation for the house to the respondent, because during the previous round of litigation, when Mst. Alam Bibi had filed a suit of pre-emption against the sale-deed executed by Allah Ditta in favour of Ali Shan and another, Mst.
5. Alam Bibi sought a temporary injunction in the trial Court restraining Ali Shan, respondent, from constructing house over the suit land. Ultimately, the District Judge, in appeal, resolved the matter in terms that in case of pre-emption decree in favour of Mst. Alam Bibi, the vendee-respondent, Ali Shan, would not be entitled to any compensation for the house and would take away the debris of the house. Thus, according to the learned counsel for the appellant, subsequent transfer by Mst.
6. Alam Bibi to Muhammad Zaman and thereafter, the sale-deed executed in favour of Ali Shan by Muhammad Zaman which has been pre-empted by the appellant, herein, would not entitle Ali Shan to claim compensation for the house constructed over the suit land. The learned counsel has further submitted that during the pendency of the pre-emption suit of Mst. Alam Bibi, Ali Shan constructed a house over five Marlas of land but subsequently, he made further extension in the house in dispute and increased its covering area. Thus, according to the learned counsel, the respondent-vendee can claim compensation only to the extent of construction made on 5 Marlas of land and not more. The learned counsel for the appellant has also argued that it was for the respondent to prove his bona fide with regard to the construction made over the suit land before claiming any compensation but the circumstances enlisted above reveal that no such bona fide was proved by the vendee-respondent. The learned counsel has argued that the High Court has also committed an error in relying upon the statement of Maqsood Ahmad, a witness of the vendee-respondent, so as to ascertain the costs of the house to the tune of Rs,17,49,749 as mentioned in the estimate prepared by him. The learned counsel has argued that it is evident from the statement of the aforesaid witness that he prepared the estimate according to the prevalent rates of the construction material, i,e,, the rates which were prevalent in September/October, 1992 whereas according to vendee-respondent, the house was constructed at least 20/25 years earlier, before the institution of the present suit in the trial Court. According to the learned counsel, if at all, the respondent is held entitled to any compensation for the house, he can only get the same according to the purchasing rates of the construction material which existed at the time of the construction of the house and not the rates which existed at the time of the preparation of the estimate of the costs Of the house.
7. 5.In reply, Ch. Muhammad Anwar, Advocate, the learned counsel for respondent No,1, has controverted the arguments advanced by the learned counsel for the appellant. He has argued that the High Court has rightly held that the contention of the learned counsel for the appellant that the respondent-vendee was not entitled to any cost of improvement because he did not raise the same point before the trial Court and the District Judge. He has further maintained that as the order by the District Judge with regard to the temporary injunction was made in the suit of pre- emption filed by Mst. Alam Bibi against Ali Shan, the same would not create a bar to the respondent-vendee to claim the compensation when the suit land was first sold by Mst. Alam Bibi to Muhammad Zaman and thereafter, to Ali Shan, respondent. The learned counsel has argued that it is not correct to suggest that the respondent failed to prove any bona fide with regard to the construction of the house. He has argued that the presumption is in favour of the bona fide and if facts contrary to that are brought on the record, it would be assumed that the construction of the house was not made with any ulterior motive, especially so when the same was admittedly made before the suit land was sold by Muhammad Zaman to Ali Shan, respondent. The learned counsel has argued that the vendee is entitled to the costs of the improvement made before the institution of the present pre-emption suit. Thus, according to the learned counsel, the construction of the house, in the instant case, having been made admittedly before the institution of the present pre- emption suit by the appellant, the respondent was entitled to the compensation for that. The learned counsel has also controverted that the estimate of the costs of the house prepared by Maqsood Ahmad, a witness of the respondent, is not reliable.
8. 6.We have given due consideration to the arguments. It may be observed here that the perusal of the memorandum of appeal filed by the appellant in the Court of District Judge shows that he had challenged the amount of Rs,18,00,000 which the appellant had to deposit in pursuance of the decree of the trial Court. However, the same assertion has not been made in detail and in clear terms. In the peculiar circumstances enlisted above, it cannot be said that the plaintiff-appellant is debarred to dispute the right of receiving compensation for the house by the vendee-respondent.
9. Therefore, we are of the opinion that the High Court was not justified to repel the contention with regard to the payment of costs of the house to the respondent on the short ground that the point could not be gone into because the same was not raised before the District Judge.
10. 7.It is correct that there is no evidence in support of the contention that the costs of the house have been excessively estimated; however, the fact remains that Maqsood Ahmad, in cross- examination has admitted that he prepared the costs of the house, according to the purchasing rates of the construction material which were prevalent at the time of the preparation of the estimate. It may be stated that in the instant case, the sale-deed which was pre-empted was executed on 27-7-1990 whereas the estimate of the costs of the house was prepared in September, 1992. We are of the opinion that the estimate of the costs of construction of the house should have been prepared taking into consideration the rates of the material of the construction which were prevalent on the date of the sale-deed and not the rates which were prevalent in September/October, 1992. Thus, despite the fact that the statement of Maqsood Ahmad with regard to the costs of construction of the house is reliable, the fact remains that according to the aforesaid witness,. the cost of the house were assessed according to purchasing rates of the construction material of the year 1992 and not of 1990.
11. 8.The contention of the learned counsel for the appellant that if at all the costs of improvement are awarded to the respondent, that would be in view of the rates prevalent 20/25 years back is not tenable because the perusal of the record shows that subsequently, the construction over five Marlas of land was extended and at present, according to the report of Maqsood Ahmad, the house consists of 14 rooms and secondly because the costs of improvement would be seen in reference to the date of the execution of the sale-deed in favour of Ali Shan as it is the aforesaid sale-deed which has been pre-empted by the plaintiff-appellant and not the sale-deed which was executed 20/25 years back and a part of the house was constructed.
12. 9.In the circumstances listed above, we are of the view that as prices of the material after almost two years had escalated, the plaintiff-appellant is entitled to depreciation in the estimated costs of the house at the rate of 10%. The 10% depreciation in the costs of house comes to Rs,1,70,000, after deducting the said amount from the costs of improvement awarded, the remaining amount comes to Rs,15,30,000. Therefore, the plaintiff-appellant shall deposit Rs,15,30,000 as costs of the house plus Rs,1,00,000, the preemption consideration, i,e,, total Rs,16,30,000 on or before 5th May, 1998 in the trial Court, failing which his suit shall stand dismissed. The judgment and decree of the High Court stand amended as indicated above. In the circumstances of the case, we make no order as to the costs.