' GUL MUHAMMAD KHAN, J-Respondents Wali Dad etc. Purchased agricultural land measuring 384 kanals 12 marlas situate in village Din Wah, Tehsil Mails!, District Multan, from Munshi Khan etc. For an ostensible amount of Rs, 2,40,400 vide mutation No, 29 dated 3rd December, 1973. The deal had been arrived at in pursuance of an agreement to sell registered on 30th August, 1973, in the presence of the Registrar where the respondent& paid a sum of Rs, 1,48,100.
2. The present appellant filed a suit for possession by way of pre-emption of the demised land on 30th November, 1974, claiming a right of pre-emption on the ground that he was not only an owner in the village but also a co-sharer of Khata in which disputed land was situate. Further, he stated that the sum actually paid was Rs, 1,92,100 whereas in order to defeat his right of pre-emption, a fictitious amount of Rs, 2,40,400 was shown by the respondents. The plaintiff further stated that the market value of the land was not more than Rs, 1,92,000. In their written statement the respondents denied the plaintiff's superior right and affirmed that the purchase price of Rs, 2,40,400 was not only actually paid but was the market price also. They also claimed to have made improvements on the land.
3. The applicant-plaintiff produced Exh. P/4 (net profit), Exh. P/6 (the five-year average price). Exhs.
P/7 and P/8 (two other mutations of sale) and 3 witnesses including himself as P. W. 3, to prove that the price of the land was less than the one allegedly paid. The defendants-repondents examined six witnesses in support of their averments in the written statement. They also produced six documents to support the payment of the entire price and the value of the improvements.
4. The trial Court vide its judgment dated 19th November, 1975, decreed the suit of the plaintiff on the payment of the entire amount claimed in the written statement in addition to a sum of Rs, 7,324 as the cost of the improvement made by the respondents on the land in question. The plaintiff- appellant was, however, denied the cost. It is stated by the learned counsel for the appellant that the judgment of the learned trial Court is erroneous as he has not taken into consideration the entire evidence and also failed to grant him the cost even though his suit was decreed despite the denial on the part of the respondents of his superior right of pre-emption.
5. The learned counsel for the appellant has taken us through the entire evidence and the record.
The evidence of P. W. 1 being hearsay is not admissible. P. W. 2 deposed that the bargain was struck in his presence for Rs, 1.92,000. In cross-examination he stated that the agreement was not written in his presence. He admitted that respondents had brought bricks etc. At site and had raised foundations. The plaintiff as his own witness said that he was an owner of land in the village while respondents were not. He also admitted in cross-examination that respondents had brought bricks at the spot and had laid foundation before they secured an interim injunction. The above evidence would show that the appellant did not support his own case much but instead supported the respondents on the point of improvements. The defence evidence on the other hand left no manner of doubt that they had paid a sum of Rs, 1,48,100 before the Registrar and a sum of Rs, 92,000 by way of a cross cheque drawn at Habib Bank Ltd., Multan. They examined D. W. 1 Mr. Masan Raza, Manager, Habib Bank Ltd., Multan and D. W. 6 Allah Wasaya and produced Exh. D/6 to prove the payment of Rs, 92,000, Rs, 1,48,100 and Rs, 300. The amount spent on improvements was proved by other witnesses, documents Exhs. D/2 to D/5 as well as by D. W 6. A Local Commissioner also estimated the cost.
The appellant does not contest the right of respondents to pre empty the sale. We find that not only the respondents had produced safficient and reliable evidence in support of their claim, the appellant could not support his contention at all. Further, in our view, there has been no misreading, misappreciation or non-consideration of any evidence. The evidence led by respondents went without any rebuttal. The learned counsel took us through the other evidence about the market price but that is necessary to be evaluated only if we disagree with the price fixed in good faith and paid. There is no error of judgment and this appeal is liable to be dismissed.
6. As regards the refusal of the trial Court to grant the appellant his costs in the cause, we think that a mistake has occurred there. The respondents did deny in their statement the superior right of pre-emption of the appellant who had to prove the same. In this view of the matter the appellant was entitled to his costs. However, the appellant himself is also to be blamed for having taken his appeal not only on the ground of costs but on other issues also. As we have come to the conclusion that the judgment of the trial Court is not in any way defective on other grounds, we are of the view that the appellant would be liable to pay costs of this appeal to the respondents.
' For the view that we have taken above, that both the patties were entitled to costs at one or the other stage of the case, the learned counsel for the two parties agreed that they may be left to bear their own costs. In view of this position we dismiss this appeal leaving the parties to bear their own costs.